AIA A312–2010 Performance Bond: Notices, Default and Deadlines

Updated September 7, 2026. This article addresses the AIA A312–2010 performance bond. Use the actual signed bond and amendments when evaluating a default or claim.

Read the triggering conditions together

Section 3 addresses notice of a possible contractor default, default and termination, and the remaining contract balance. Sending a general complaint does not necessarily satisfy the bond's requirements.

The prejudice exception is limited

Section 4 concerns failure to give the notice described in Section 3.1. It limits relief from the surety's obligations to demonstrated actual prejudice from that failure. It is not a blanket exception for every missed notice or other condition in the bond. AIA's official commentary and comparison explains the change from the 1984 form.

Address a surety's failure to act through the right procedure

Section 6 provides an additional demand and seven-day period when the surety has not proceeded with reasonable promptness under Section 5. A denial or a disputed payment offer is treated differently. Identify the surety's response before assuming the same demand procedure applies in every situation.

Calendar the time for proceedings separately

Section 11 generally measures its two-year period from the earliest of the listed events: a declaration of contractor default, the contractor ceasing work, or the surety's refusal or failure to perform. Review the complete clause and applicable law rather than counting only from the most recent denial letter.

Keep a complete record

Preserve the signed bond, contract, amendments, default notices, delivery receipts, payment ledger and communications with the surety. Before arranging completion work, assess how the proposed action affects the surety's contractual options and your rights.

Kushnick Pallaci PLLC handles construction contract and surety disputes. For a different issue—unpaid labor or materials—see our payment-bond claim guidance.

General information only. Bond language, governing law and project facts control.

AIA A312–2010: Performance Bonds vs. Payment Bonds

Updated September 7, 2026. AIA A312–2010 includes two separate bonds. Before sending a claim, confirm which bond you have and who it protects.

Performance bond

A performance bond addresses the contractor's obligation to complete the contracted work. The claimant must identify the obligee, the contractor, the surety, and the events and notices that trigger the surety's duties. A demand for completion is not interchangeable with an unpaid subcontractor's payment claim.

Payment bond

A payment bond addresses qualifying claims for labor and materials. Check the claimant definition, contract tier, required notice, supporting information and time to bring proceedings. Do not apply the performance bond's deadlines to the payment bond.

Two bonds require separate execution

AIA's instructions for A312–2010 explain that each bond must be completed and signed separately. Mixing the cover and signature pages can create a serious problem. The 2010 forms replaced the 1984 edition, not a 1983 edition.

Organize the claim before a deadline approaches

• Obtain the complete signed bond, incorporated contract and amendments.
• Confirm the parties' correct legal names and notice addresses.
• Prepare the work and payment chronology with supporting documents.
• Calendar notices, cure periods and the time to sue separately.

Kushnick Pallaci PLLC assists with New York payment-bond claims and construction contract disputes. See the companion article on A312 performance-bond notice requirements.

General information only. The actual bond, its edition, amendments and governing law must be reviewed.

Late Public Payment-Bond Notice: Brer-Four and the Claimant’s Contractual Tier

Reviewed September 7, 2026.

In Brer-Four Transportation Corp. v. Zurich American Insurance Co., 78 AD3d 875 (2010), the Second Department dismissed a payment-bond claim because the required notice was late.

The claimant worked for Fleet, which performed trucking work under purchase orders on a New York City public project. The record established that Fleet was a subcontractor, rather than merely a material supplier. The claimant had no direct contract with the bonded general contractor and undisputedly failed to provide notice within the applicable 120-day period under State Finance Law § 137(3).

Identify the contracting chain early

Describe what each company actually undertook to do, and collect its agreement or purchase orders. A label such as supplier does not settle the legal classification. Record the claimant's last covered work and determine who must receive notice, what it must contain and how it must be delivered.

This is a New York statutory public-bond decision. Federal Miller Act bonds and private bonds can impose different requirements. The surety's response period is also a different issue from the claimant's notice deadline.

Kushnick Pallaci PLLC assists clients throughout New York with payment-bond claims. Contact 631-752-7100 or vtp@kushnicklaw.com.

Attorney Advertising. General information, not legal advice.