Article by: Brian M. Streicher

In Flintco LLC v. Total Installation Management Specialists, Inc.,¹ the Oklahoma Supreme Court delivered a significant opinion on the scope of a surety’s liability under the AIA A311 performance bond, resolving a long-standing question in Oklahoma regarding the A311’s conditions precedent. The Court held that the declaration of a default and notice to the surety was a mandatory condition precedent to the surety’s obligation under the A311 performance bond, which accords with the majority of jurisdictions in the United States. The Court’s ruling reaffirms fundamental principles of suretyship—that a surety’s obligations arise only after strict compliance with the conditions precedent stated in the bond—and rejects attempts to expand a surety’s liability beyond the express terms of the contract.

The case involved the construction of new student housing facilities at Oklahoma State University. Flintco was the general contractor and subcontracted the flooring work to Total Installation Management Specialists, Inc. (“Total”). Total secured a performance bond from Oklahoma Surety Company (“OSC”) using the AIA A311 form. The bond expressly stated: “Whenever Principal shall be, and declared by Obligee to be in default under the subcontract, the Obligee having performed Obligee’s obligations thereunder: …Obligee after reasonable notice to Surety may, or Surety upon demand of Obligee may arrange for the performance of Principal’s obligation under the subcontract…”

Total’s performance faltered in terms of management, manpower, materials, and progress, upon which Flintco supplemented the workforce and undertook the work itself for more than five weeks before notifying OSC. By the time notice was given, Flintco had effectively displaced the subcontractor through supplemental subcontractors and completed the work, exceeding Total’s contract amount by $618,654.23. Flintco then sued Total and OSC for reimbursement of the completion costs.

The central issue before the Court was whether Flintco’s failure to declare default and give prior notice to the surety barred recovery under the bond. The Court answered emphatically in the affirmative, holding that the notice requirement constituted a mandatory condition precedent to the surety’s liability.

The Court emphasized that a performance bond must be interpreted according to its clear terms. The Court reaffirmed that a surety cannot be held beyond the express language of its undertaking. The A311 bond language, the Court reasoned, unambiguously made the surety’s liability contingent on two sequential acts: the declaration of the principal’s default and reasonable notice to the surety of the default.

The decision reaffirms three substantive tenets of surety law. First, the bond language is the primary legal source for the surety’s liability. While the bonded subcontract allowed Flintco to supplement the subcontractor’s work, the bond gave OSC independent contractual rights—to investigate, remedy, or arrange completion. Particularly, although the bonded subcontract was incorporated by reference into the bond, the Surety’s primary risk profile is driven by the bond itself.

Second, notice provisions serve as material, not technical, requirements. The Court characterized notice as a substantive component of the surety’s bargain, not a mere formality. The surety’s opportunity to act before the obligee undertakes self-help is intrinsic to its risk allocation. 

Third, the Court rejected expansion of the surety’s role into that of a commercial guarantor. Flintco had urged the Court to adopt reasoning from Colorado Structures, Inc. v. Insurance Company of the West² and other minority jurisdictions, which treated the A311 bond’s “condition” clause as creating absolute liability once the principal failed to perform. The Oklahoma Supreme Court declined, observing that such a reading “would turn a performance surety into a commercial guarantor—an undertaking well beyond the limits of the surety bond.” 

One of the cases rejected by the Flintco Court is Walter Concrete Construction Corp. v. Lederle Laboratories,³ in which New York’s highest court held that the A311 language does not contain an express condition precedent of declaration of default and notice to the surety. The Flintco Court downplayed New York’s Walter Concrete decision as a “memorandum opinion containing only three paragraphs of brief analysis.” The Flintco Court further remarked: “[Walter Concrete] fails to properly give effect to the plain meaning of the bond provisions and subjects the surety to liability beyond that which it expressly agreed to undertake.” The Oklahoma Supreme Court rightly rebuked the New York Court of Appeals’ decision, which unfortunately remains the law in New York and a minority of other jurisdictions.

The Flintco decision harmonizes Oklahoma law with the majority rule nationally and signals to contractors and owners that performance bond obligations are reciprocal. A bond is not a blank check; it is a conditional undertaking that depends on the obligee’s adherence to notice and default procedures. Obligees seeking to preserve bond coverage under the A311 in majority-rule jurisdictions must formally declare default and promptly notify the surety before self-performing or hiring replacements. The ruling stabilizes expectations within the surety marketplace and reinforces the principle that freedom of contract governs the allocation of risk in bonded construction relationships.

1. 576 P.3d 915 (Okla. 2025).
2. 161 Wash.2d 577 (2007).
3. 99 N.Y.2d 603 (2003).