Consent of Surety Under FAR 28.106-5: A Step-by-Step Walkthrough
On federal construction projects, contract modifications can alter risk, contract value, and performance obligations. When these changes occur, federal contracting officers are often required to obtain formal agreement from the surety that issued the original bonds. Understanding how and when this approval happens protects contractors and subcontractors from administrative delays. Under FAR 28.106-5, specific criteria dictate when a contracting officer must secure the consent of surety. This walkthrough breaks down each step required to evaluate a modification against the federal regulation.
Step 1: Verify the Underlying Security Type
Before assessing the scope or dollar value of a change order, review how the contract was originally bonded. The requirement for consent of surety does not apply to every form of collateral. According to FAR 28.106-5(b), when performance or payment is secured by any of the types of security listed in 28.204, no consent of surety is required when a contract is modified. If the contract utilizes standard corporate or individual bonds rather than the security options outlined in 28.204, the contracting officer must evaluate the modification against the mandatory consent triggers.
Step 2: Check for Bonds Obtained from an Alternate Surety
When changes necessitate additional bonding capacity, contracting officers must examine where that supplemental coverage originates. Under FAR 28.106-5(a)(1), the contracting officer shall obtain the consent of surety if an additional bond is obtained from a surety other than the original surety. Bringing in a different surety creates divided liability between corporate entities, requiring the original bonding company to formally consent to the arrangement before the modification proceeds. For trade contractors tracking job requirements, reviewing our guide to bid bonds, performance bonds and payment bonds provides useful background on how these instruments operate.
Step 3: Screen for Scope Changes Beyond the Original Contract
If no additional bond is required for the modification, the contracting officer must inspect the actual content of the work. Under FAR 28.106-5(a)(2)(i), consent of surety must be obtained if the modification is for new work beyond the scope of the original contract. When the government introduces tasks that fall completely outside the original agreement, the surety must evaluate whether it is willing to guarantee the altered performance terms. This review step applies even when the added scope does not call for an increase in the penal sum of the bond.
Step 4: Calculate the Contract Price Variance Thresholds
Even if a modification stays within the original scope of work, financial shifts can trigger mandatory surety review. When managing contract revisions or pricing change orders, contractors must monitor the exact financial delta. Under FAR 28.106-5(a)(2)(ii), consent of surety is mandatory when no additional bond is required and:
- The modification does not change the contract scope; and
- The modification changes the contract price (upward or downward) by more than 25 percent or $50,000.
Because the rule explicitly applies to movements upward or downward, substantial deductive modifications are subject to the exact same consent threshold as additive change orders. Crossing either the 25 percent mark or the $50,000 mark triggers the obligation for contracting officers.
Step 5: Identify Novation Agreements
Administrative modifications involving company ownership or structural changes also fall under the surety consent umbrella. Under FAR 28.106-5(a)(3), contracting officers shall obtain the consent of surety if consent is required for a novation agreement under subpart 42.12. When a contractor undergoes restructuring, transfers assets, or changes the legal entity executing the project, the surety must formally acknowledge and agree to guarantee the successor firm under the contract terms.
Step 6: Execute Standard Form 1414
Once it is determined that consent is required under any of the conditions in FAR 28.106-5(a), the transaction must be documented on the federally prescribed form. FAR 28.106-5(c) states that agencies shall use Standard Form 1414, Consent of Surety, for all types of contracts. Contracting officers and prime contractors cannot substitute arbitrary paperwork or informal letters; the surety executes Standard Form 1414 to provide formal legal consent for the modification to become effective.
Sources
FAR 28.106-5 Consent of surety. | Acquisition.GOV
Published November 9, 2026. No affiliate links on this page. Facts come from the sources linked above; check them for updates.