Every other state guide on this site starts with a number. This one cannot, because West Virginia’s public building bond statute does not contain one.
Section 38-2-39 of the West Virginia Code names no dollar threshold that triggers the bond and no percentage that sizes it. Both of the figures a contractor expects to find are simply not in the section, and what stands in their place is a different kind of measure entirely.
No threshold
The duty runs to the contracting bodies and it is unqualified by contract value:
“It shall be the duty of the state commissioner of public institutions, and of all county courts, boards of education, boards of trustees, and other legal bodies having authority to contract for the erection, construction, improvement, alteration or repair of any public building or other structure, or any building or other structure used or to be used for public purposes, to require of every person to whom it shall award, and with whom it shall enter into, any contract for the erection, construction, improvement, alteration or repair of any such public building or other structure … that such contractor shall cause to be executed and delivered … a good, valid, solvent and sufficient bond”
“Every person to whom it shall award” is the whole test. There is no exceeding, no in excess of, no equal to or greater than. Where a Texas or an Idaho contractor first asks how big the contract is, a West Virginia contractor on covered work asks a different first question, because contract size is not what the section turns on.
That absence is what makes this statute worth a page of its own. Reading it as “West Virginia’s threshold is zero” is close but not quite right — a threshold of zero is still a threshold, and this section is drafted without the concept.
No percentage either
The penal sum clause is the same sentence, continued:
“in a penal sum equal at least to the reasonable cost of the materials, machinery, equipment and labor required for the completion of such contract”
That is a cost-of-inputs measure. It is not a fraction of the contract price, and no percentage figure appears anywhere in the section.
The difference is not academic. Contract price and input cost are the same number only on a job priced at cost. On any contract carrying normal overhead and profit they diverge, and West Virginia has chosen to size the bond by what it would take to pay everyone who furnished something, rather than by what the owner agreed to pay the contractor.
That choice fits what the bond is conditioned on. The section makes the bond answerable if the contractor “shall fail to pay in full for all such materials, machinery, equipment and labor delivered to him for use in the erection, construction, improvement, alteration or repair” of the structure, and makes the bond and its sureties “responsible to such materialman, furnisher of machinery or equipment, and furnisher or performer of such labor, or their assigns, for the full payment of the full value thereof.”
Read together, the measure and the condition are the same idea stated twice. The bond is sized to the thing it has to be able to pay for.
Machinery and equipment are named in the measure itself
Most payment protection statutes are built around the pair labor and materials. West Virginia’s runs to four things — materials, machinery, equipment and labor — in the penal sum clause, in the condition, and in the list of who may recover.
If you supply or rent machinery onto West Virginia public building work, you are not arguing about whether an equipment supplier fits a labor-and-materials formula. You are named in the sizing measure.
Cash and securities instead of a surety
The section provides an explicit alternative to corporate surety:
“All such bonds shall have as surety thereon either some incorporated bonding and/or surety company authorized to carry on business in this state, or in lieu of such corporate surety the contractor may deposit as security for such bond with the said state commissioner of public institutions, county court, Board of Education, board of trustees or other legal body having authority so to contract, a sum in cash or bonds and securities of the United States of America or of the State of West Virginia of sufficient amount and value equal at least to the reasonable cost of materials, machinery, equipment and labor required for the completion of such contract.”
The same measure governs the deposit. Whichever route is taken, the amount is the reasonable cost of the inputs.
For most contractors this is theoretical — depositing the full input cost of a contract in cash or government securities ties up capital that a bond exists to avoid tying up. It matters more as a signal about what the statute is doing: it wants a fund of a certain size available, and it is indifferent to whether a surety or the contractor provides it.
Bid security is somewhere else
Bid security in West Virginia is handled in the bidding rules rather than in this section. There, a bidder certifies among other things that it “has supplied a valid bid bond or other surety authorized or approved by the contracting public entity,” alongside certifications that it is ready, able and willing to timely furnish the labor and materials required, and is in compliance with applicable West Virginia law.
That is a certification obligation with a bond inside it, not a penal-sum rule, and the acceptable form is whatever the contracting public entity authorizes or approves.
What this page does not cover
Section 38-2-39 gives the duty, the measure and the condition. It does not give the claim mechanics — the notice a claimant must give and the deadline for bringing suit on the bond. We have not read those provisions for this page, so it does not state them, and if you are pursuing an unpaid claim on West Virginia public work the timing rules are the part that will decide it.
How this compares
The contrast with federal work is stark, and it is a useful way to hold the difference. On a federal construction contract the bond obligation is switched on by a dollar figure — more than $100,000 under 40 U.S.C. § 3131(b), stated as exceeding $150,000 in FAR 28.102-1(a) — and the performance bond penal sum is set as a share of the contract price under FAR 28.102-2(b). West Virginia’s section does neither. It switches on by the nature of the work and the identity of the buyer, and it sizes the bond by the cost of what goes into the job.
We write performance and payment bonds in West Virginia, along with the license, permit and bid bonds its agencies and local jurisdictions require.
