国际工程合同管理程序指南-第十节
第十节 保险与保函
现在工程合同一般都会涉及到保函和保险的问题，保险可以是业主承办也可以是承包商承办，具体要看合同怎么规定，不过多数都是承包商承办。保函通常是承包商提交给业主作为其实施合同保证。
总承包商和分包商或者是供应商之间也可能会涉及到保险或者是保函的问题。
10.1 保险
为了确保承包商已经按照合同要求办理了保险，所以承包商通常需要向业主方提交保险凭证以证明其已经办理了保险，同时根据保险的条款，保险都会有到期的日期，所以在过程中，业主方也需要对保险情况进行跟踪。
按照通常的合同要求，承包商在和业主签订合同后紧接着就要提交保险证书，这个日期一般不会晚于合同正式开工或者是承包商进场的日期。如果承包商没有完成保险手续，原则上不得允许承包商进场。在合同实施过程中，如果承包商的保险过期了或者是出现了大的改动不再符合合同的要求，在承包商重新办理保险前，原则上不允许承包商进场施工。
对于承包商的保险证书的合同一般可以按照以下的要求进行：
Insurance Certificate Review Instructions 表10.1
PURPOSE
To establish responsibility for acquiring initial contractor submitted Certificates of Insurance and to provide guidelines for determination of the validity of such Certificates.
DEFINITIONS
A Certificate of Insurance establishes that the contractor has appropriate insurance to cover claims for which the contractor is responsible.
REQUIREMENTS
Attachment A is a sample Insurance Certificate. The sections below provide explanations and directions. The numbers also correspond to the sections on the Certificate.
1. This is the date the Certificate of Insurance was typed.
2. The name and address of the agent or broker who placed the insurance coverage for the contractor.
3. The name and address of the contractor who provided the evidence of insurance on the Certificate.
Verify that the name of the contractor is the same as the name in the contract.
4. The names of the insurance companies providing the insurance for the insured.
When there is any question about a contractor purportedly having valid insurance coverage, contact the insurance company directly referencing the policy number.
5. Letter designation will indicate which insurance company is providing insurance coverage from the list of insurance companies under Companies Affording Coverage.
6. Type of Insurance identifies the specific insurance being provided.
Commercial General Liability (formerly Comprehensive General Liability) is the insurance generally available to contractors to cover third party liability arising from their operations. This type of policy includes the following coverage’s:
- Premises and Operations
- Products and Completed Operations
- Contractual Liability
- Broad Form Property Damage
- Explosion, Collapse and Underground Hazards
- Personal Injury Liability
- Cross Liability or Severability of Interest Clause
The company requires that the Commercial General Liability policy be on an Occurrence Form. This form provides coverage for a loss that happened during the policy term even if the claim is made after the policy has expired. A Claims Made policy restricts the time that is allowed to make a claim to either the policy term or the policy term plus a limited extended reporting period thereafter. Both Occurrence and Claims Made policies will show per occurrence and annual aggregate limits. The company requires for contractors certain minimum limits per occurrence and minimum annual aggregate limits also, with this aggregate being a policy aggregate for all of the contractor’s work. If the contractor has an aggregate less than this limit, it should obtain an endorsement from its insurer to establish a project aggregate for the work it is doing for the company. (While we require contractors to furnish Occurrence policies, it is likely that those contractors performing environmental work will be able to obtain only Claims Made coverage.) The limits referred to herein are for the company’s long form subcontract. Subcontracts with reduced scopes may not need insurance limits this high. Refer to the Procurement Manual for the acceptable limits.
Verify that the types of insurance and the limits of coverage being provided are consistent with the contract requirements. If in doubt, have the Certificate reviewed by the Risk Management Department.
7. The policy number of the insurance policy provided to the contractor.
8. The policy effective date must be effective on or before the contract inception date.
9. The policy expiration date must expire on or after the contract completion date.
If the expiration date is before the contract completion date, Procurement (or Contract Administration if the contract has been transferred to the field) must monitor to insure receipt of renewal certificates.
10. Generally the typed entries and special request items will appear in this space on the Certificate of
Insurance and may also include the “per project” limit mentioned above.
A sample of what might appear:
“XYZ Corporation (Owner) and the company are included as additional insureds except for Worker’s Compensation for the Fixed Project, #xxxxx, but only with respect to liability arising out of the operation for the Owner and the Company by or for the contractor. Such insurance shall be primary with any other insurance maintained by the additional insured excess thereto.”
The project name, contract number, and the specific company entity named as additional insured as well as the Customer/Owner, if required, must appear. (While in practice the additional insured provision is show in item 10; it is preferable to have this provision shown on a separate endorsement attached to the Certificate.)
11. The certificate holder is the company entity which requested the Certificate of Insurance from the contractor.
Verify that it is the correct company entity.
12. The company requires thirty (30) days notice of material alteration to the contractor’s policies or cancellation.
The standard cancellation provision does not include a provision for notice of termination or material alteration and there is no industry standard for amending the Certificate. Look for a typed entry or require the standard Certificate to be modified.
13. The Certificate of Insurance must be signed to be valid. It can be signed by the agent, the broker, or the insurance company.
Verify that the Certificate of Insurance has been signed.
在合同实施过程中，保险的范围和过期应该及时跟踪，确保承包商能够及时的更新保险。
每一份保险的到期日期都应该书面记录，同时要建立一个预警系统，提前一定的时间（如45天）通知相关方及时更新保险。
10.2 保函
工程合同中的保函主要包括履约保函和预付款保函。
履约保函是为了确保承包商能够按照合同的要求完成工作内容。另外，我们常在合同中看到对于有些特殊内容的工作会要求在完工并接受以后仍然提供更长时间的保证，比如防水，这种保证一般称之为warranty。履约保函的额度要求与合同额相等。另外也有可能为了确保承包商会向分包商和供应商支付工程或者材料款而要求承包商提供保函，这种情况下的保函称为付款保函（payment bond），通常付款保函和履约保函合二为一来提供。
承包商应该在合同签订后立即根据合同要求向业主提供履约保函，一般情况下，如果工程项目是招标的，那么在中标者提供履约保函之前是不会返回其投标保函的。一般而言，在合同实施过程中并不需要对保函进行更新，通常情况下，合同中的变更也不需要通知开设保函的银行，但是当一些变更可能超出合同范围时，则需要知会保函开出银行，以确保保函中覆盖了这部分的内容，当一个项目的合同的变更足够大时，则可能需要对附加部分提供新的保函。
在工程中要确保承包商已经提供保函并且保函符合合同内容的要求。
预付款保函也是国际工程项目中经常会涉及到一种保函形式，预付款保函的目的是确保承包商将预付款用于跟本项目有关的事宜，一般预付款保函要求在支付预付款之前提供。
下表所示检查保函和保险的一个check list：
Insurance and Bonds Checklist 表10.2
Contract Number:
Contractor:
Contract:
Scope:
1. Insurance Certificates have been obtained from contractor PRIOR to mobilization.
2. Contractor’s insurance coverage meets contract requirements.
3. Expiration dates have been entered into the tickler system.
4. Special insurance coverage, if required has been obtained.
5. Bond (or Letter of Credit), if required, has been obtained.
6. Insurance and bonding companies have been checked through the Risk Management Department.
7. Validity of Insurance Certificates and bonds has been verified with the insurance company as appropriate.
8. Insurance Register is maintained to monitor expiration dates.
