Article 117. Definitive guarantees.

1. For the signing of the contract, the contractor constitutes a guarantee, called "definitive guarantee", at his choice in the form of a deposit or surety in the manner provided for in article 106, equal to 10 percent of the contractual amount; this obligation is indicated in the tender deeds and documents. In the case of procedures carried out in aggregate form by central purchasing bodies, the amount of the guarantee is indicated at a maximum of 10 percent of the contractual amount. In the case of procedures concerning framework agreements referred to in article 59, the amount of the guarantee for all successful economic operators is indicated at a maximum of 2 percent of the amount of the framework agreement; the amount of the guarantee for the implementation contracts can be set in the tender documentation of the framework agreement at an amount even lower than 10 percent of the value of the contracts themselves with an indication of the methods for calculating the increase envisaged by paragraph 2. 2 To safeguard the public interest in the conclusion of the contract within the terms and in the manner planned in the event of an award with discounts exceeding 10 percent, the guarantee is increased by as many percentage points as those exceeding 10 percent. If the decline is greater than 20 percent, the increase is two percentage points for each point decline greater than 20 percent. In the case of framework agreements with multiple operators which provide for a reopening of the relaunch, the increase referred to in this period is established by the contracting authority in the tender documentation of the framework agreement. 3. The guarantee is provided for the fulfillment of all obligations of the contract and for compensation for damages resulting from any failure to fulfill the obligations themselves, as well as for the reimbursement of sums paid in addition to the executor compared to the results of the final settlement , without prejudice to the compensation for the greater damage towards the contractor. The guarantee ceases to have effect only on the date of issue of the provisional testing certificate or the certificate of regular execution and in accordance with the methods set out in paragraph 8. The contracting authority may request the successful tenderer to reinstate the guarantee if it has completely ceased to apply. or in part; in case of non-compliance, reinstatement is carried out based on the price installments to be paid. The reductions provided for in article 106, paragraph 8, for the provisional guarantee apply to the definitive guarantee. 4. In works contracts, the contractor may request, before signing the contract, to replace the definitive guarantee with the application of a withholding tax on the progress reports equal to 10 percent of the same, without prejudice to the surety guarantee established for the provision of the advance and the guarantee to be constituted for the payment of the balance instalment, pursuant to paragraph 9. For justified reasons of risk due to particular characteristics of the contract or specific subjective situations of the executor of the works, the contracting authority may oppose the replacement of the guarantee. Withholding taxes are released by the contracting station upon issuing the provisional testing certificate or the certificate of regular execution or in any case no later than twelve months after the date of completion of the works resulting from the relevant certificate. 5. The contracting stations have the right to claim of the guarantee, within the limits of the maximum guaranteed amount, for any additional expense incurred for the completion of the works, services or supplies in the event of termination of the contract ordered to the detriment of the executor. They can also confiscate the guarantee for the payment of the amount due by the executor for non-compliance resulting from non-compliance with the rules and provisions of collective agreements, laws and regulations on the protection, protection, insurance, assistance and physical safety of the workers assigned to the execution. of the contract. 6. Without prejudice to the provisions of paragraph 4, failure to establish the guarantee referred to in paragraph 1 determines the forfeiture of the award and the acquisition of the provisional guarantee presented at the time of the offer by the contracting authority, which awards the contract to the competitor next in the ranking. 7. The suretyship referred to in paragraph 1 may be issued by the subjects referred to in article 106, paragraph 3, in the manner provided for in the second period of the same paragraph. The guarantee expressly provides for the waiver of the benefit of preventive enforcement by the principal debtor, the waiver of the exception referred to in article 1957, second paragraph, of the civil code, as well as the operation of the guarantee itself within fifteen days, upon simple written request of the contracting authority. 8. The guarantee referred to in paragraph 1 is progressively released as the execution progresses, within the maximum limit of 80 percent of the initial guaranteed amount. The residual amount of the definitive guarantee remains until the date of issue of the provisional testing certificate or the certificate of regular execution, or in any case up to twelve months from the date of completion of the works resulting from the relevant certificate. The release is automatic, without the need for authorization from the client, with the sole condition of the prior delivery to the guarantor institution, by the contractor, of the state of progress of the works or of a similar document, in original or certified copy, certifying the execution took place. This automatism also applies to supply and service contracts. Agreements to the contrary or in derogation are void. Failure to release the progress reports or similar documentation within fifteen days constitutes a breach of contract by the guarantor towards the company for which the guarantee is provided. 9. Payment of the balance installment is subject to the provision of a security or of a bank or insurance guarantee equal to the amount of the same balance installment increased by the legal interest rate applied for the period between the date of issue of the test certificate or verification of conformity in the case of service or supply contracts and the assumption of the definitive character of the same. 10. The executor of the works constitutes and delivers to the contracting station at least ten days before the delivery of the works also an insurance policy which covers the damages suffered by the contracting stations due to damage or of the total or partial destruction of systems and works, including pre-existing ones, which occurred during the execution of the works. The amount of the sum to be insured is established in the documents and deeds based on the tender or assignment which, as a rule, corresponds to the amount of the contract itself if there are no justified particular circumstances that require a higher amount to be insured. The policy of this paragraph insures the contracting authority against civil liability for damage caused to third parties during the execution of the works, the ceiling of which is equal to 5 percent of the sum insured for the works with a minimum of 500,000 euros and a maximum of 5,000,000 euros. The insurance coverage starts from the date of delivery of the works and ceases on the date of issue of the provisional testing certificate or the certificate of regular execution or in any case twelve months after the date of completion of the works resulting from the relevant certificate. If a guarantee period is foreseen, the insurance policy is replaced by a policy that indemnifies the contracting authorities from all risks associated with the use of the works under guarantee or interventions for their possible replacement or reconstruction. The omitted or delayed payment of the sums due as a premium or commission by the executor does not lead to the ineffectiveness of the guarantee towards the contracting authority. 11. For works with an amount exceeding double the threshold referred to in article 14, the holder of the contract for the settlement of the balance installment stipulates, with effect from the date of issue of the provisional testing certificate or the certificate of regular execution or in any case twelve months from the date of completion of the works resulting from the relevant certificate , a ten-year indemnity policy to cover the risks of total or partial ruin of the work, or risks deriving from serious construction defects. The policy contains the provision for the payment of the contractually due compensation to the client as soon as he requests it, even while liability is pending and without the need for consent or authorization of any kind. The indemnity limit of the ten-year policy is no less than 20 percent of the value of the work carried out and no more than 40 percent, in compliance with the principle of proportionality having regard to the nature of the work. The executor of the works also stipulates for the works referred to in this paragraph a civil liability insurance policy for damage caused to third parties, with effect from the date of issue of the provisional testing certificate or the certificate of regular execution and for the duration of ten years and with compensation equal to 5 percent of the value of the work carried out with a minimum of 500,000 euros and a maximum of 5,000,000 euros. 12. The sureties and insurance policies provided for by the code comply with the schemes type approved by decree of the Minister of Business and Made in Italy in agreement with the Minister of Infrastructure and Transport and the Minister of Economy and Finance. Suretyship guarantees provide for compensation towards the contractor and the right of recourse towards the contracting authority for any unjust enrichment and can be issued jointly by multiple guarantors. The guarantors designate an agent or a delegate for relations with the contracting authority. 13. In the case of temporary groupings, the sureties and insurance guarantees are presented, on an irrevocable mandate, by the agent in the name and on behalf of all the competitors, without prejudice to the joint and several liability between the companies. 14. For contracts to be carried out by economic operators of proven solidity as well as for the supply of goods which due to their nature, or the special use for which they are intended, must be purchased in the place of production or supplied directly by the manufacturers, or for the supply of art products, machinery, instruments and precision work, the execution of which must be entrusted to specialized operators, exemption from the provision of the guarantee is possible subject to adequate justification and is subject to an improvement in the award price or execution conditions. EFFECTIVE FROM: 1 July 2023