28.204-3 Irrevocable letter of credit.

(a) Any person required to furnish a bond has the option to furnish a bond secured by an irrevocable

letter of credit (ILC) in an amount equal to the penal sum required to be secured (see 28.204). A

separate ILC is required for each bond.

(b) The ILC shall be irrevocable, require presentation of no document other than a written demand

and the ILC (and letter of confirmation, if any), expire only as provided in paragraph (f) of this

subsection, and be issued/confirmed by an acceptable federally insured financial institution as

provided in paragraph (g) of this subsection.

(c) To draw on the ILC, the contracting officer shall use the sight draft set forth in the clause at

52.228-14, and present it with the ILC (including letter of confirmation, if any) to the issuing

financial institution or the confirming financial institution (if any).

(d) If the contractor does not furnish an acceptable replacement ILC, or other acceptable substitute,

at least 30 days before an ILC’s scheduled expiration, the contracting officer shall immediately draw

on the ILC.

(e) If, after the period of performance of a contract where ILCs are used to support payment bonds,

there are outstanding claims against the payment bond, the contracting officer shall draw on the ILC

prior to the expiration date of the ILC to cover these claims.

(f) The period for which financial security is required shall be as follows:

(1) If used as a bid guarantee, the ILC should expire no earlier than 60 days after the close of the bid

acceptance period.

(2) If used as an alternative to corporate or individual sureties as security for a performance or

payment bond, the offeror/contractor may submit an ILC with an initial expiration date estimated to

cover the entire period for which financial security is required or an ILC with an initial expiration

date that is a minimum period of oneyear from the date of issuance. The ILC shall provide that,

unless the issuer provides the beneficiary written notice of non-renewal at least 60 days in advance

of the current expiration date, the ILC is automatically extended without amendment for oneyear

from the expiration date, or any future expiration date, until the period of required coverage is

completed and the contracting officer provides the financial institution with a written statement

waiving the right to payment. The period of required coverage shall be:

(i) For contracts subject to the Bonds statute, the later of-

(A) Oneyear following the expected date of final payment;

(B) For performance bonds only, until completion of any warranty period; or

(C) For payment bonds only, until resolution of all claims filed against the payment bond during the

one-year period following final payment.

(ii) For contracts not subject to the Bonds statute, the later of-

(A) 90 days following final payment; or
(B) For performance bonds only, until completion of any warranty period.

(g) Only federally insured financial institutions rated investment grade shall issue or confirm the

ILC. Unless the financial institution issuing the ILC had letter of credit business of at least $25

million in the past year, ILCs over $5 million must be confirmed by another acceptable financial

institution that had letter of credit business of at least $25 million in the past year.

(1) The offeror/contractor is required by paragraph (d) of the clause at 52.228-14. Irrevocable Letter

of Credit, to provide the contracting officer a credit rating from a recognized commercial rating

service that indicates the financial institution has the required rating(s) as of the date of issuance of

the ILC.

(2) To support the credit rating of the financial institution(s) issuing or confirming the ILC, the

contracting officer shall verify the following information:

(i) Federal insurance: Each financial institution is federally insured. Verification of federal insurance

is available through the Federal Deposit Insurance Corporation (FDIC) institution directory at the

website http://www2.fdic.gov/idasp/index.asp.

(ii) Current credit rating. The current credit rating for each financial institution is investment grade

and that the credit rating is from a Nationally Recognized Statistical Rating Organization (NRSRO).

NRSROs can be located at the website http://www.sec.gov/answers/nrsro.htm maintained by the

SEC.

(3) The rating services listed in the website http://www.sec.gov/answers/nrsro.htm use different

rating scales (e.g., AAA, AA, A, BBB, BB, B, CCC, CC, C, and D; or Aaa, Aa, A, Baa, Ba, B, Caa, Ca,

and C) to provide evaluations of institutional credit risk; however, all such systems specify the range

of investment grade ratings (e.g., BBB-AAA or Baa-Aaa in the examples in this section) and permit

evaluation of the relative risk associated with a specific institution. If the contracting officer learns

that a financial institution's rating has dropped below investment grade level, the contracting officer

shall give the contractor 30 days to substitute an acceptable ILC or shall draw on the ILC using the

sight draft in paragraph (g) of the clause at 52.228-14.

(h) A copy of the Uniform Customs and Practice (UCP) for Documentary Credits, 2007 Edition,

International Chamber of Commerce Publication No. 600, is available from:

ICC Books USA, 1212 Avenue of the Americas, 21 st Floor, New York, NY 10036;

Phone: 212-703-5078; Fax: 212-391-6568; E-mail: iccbooks@uscib.org; Via the Internet

at:http://www.uscib.org/ucp-600-ud-4465/.

Parent topic: 28.204 Alternatives in lieu of corporate or individual sureties.