(a) After consultation with legal counsel, the contracting officer shall release the security interest on the individual surety’s assets using the Optional Form 90, Release of Lien on Real Property, or Optional Form 91, Release of Personal Property from Escrow, or a similar release as soon as possible consistent with the conditions in subparagraphs (a)(1) and (2) of this subsection. A surety’s assets pledged in support of a payment bond may be released to a subcontractor or supplier upon Government receipt of a Federal district court judgment, or a sworn statement by the subcontractor or supplier that the claim is correct along with a notarized authorization of the release by the surety stating that it approves of such release.
(1) Contracts subject to the Miller Act. The security interest shall be maintained for the later of -
(i) 1 year following final payment,
(ii) Until completion of any warranty period (applicable only to performance bonds), or
(iii) Pending resolution of all claims filed against the payment bond during the 1-year period following final payment.
(2) Contracts subject to alternative payment protection (28.102-1(b)(1)). The security interest shall be maintained for the full contract performance period plus one year.
(3) Other contracts not subject to the Miller Act. The security interest shall be maintained for 90 days following final payment or until completion of any warranty period (applicable only to performance bonds), whichever is later.
(b) Upon written request, the contracting officer may release the security interest on the individual surety’s assets in support of a bid guarantee based upon evidence that the offer supported by the individual surety will not result in contract award.
(c) Upon written request by the individual surety, the contracting officer may release a portion of the security interest on the individual surety’s assets based upon substantial performance of the contractor’s obligations under its performance bond. Release of the security interest in support of a payment bond must comply with the subparagraphs (a)(1) through (3) of this subsection. In making this determination, the contracting officer will give consideration as to whether the unreleased portion of the lien is sufficient to cover the remaining contract obligations, including payments to subcontractors and other potential liabilities. The individual surety shall, as a condition of the partial release, furnish an affidavit agreeing that the release of such assets does not relieve the individual surety of its obligations under the bond(s).
