Art. 93. Guarantees for participation in the procedure)1. The tender shall be accompanied by a fiduciary bond, called a "performance bond" of 2% of the basic price specified in the notice or invitation, in the form of a security or bond, chosen by the tenderer. In order to make the amount of the bond proportional and adequate to the nature of the services covered by the contract and the degree of risk connected to it, the contracting entity can justifiably reduce the amount of the deposit by up to 1% or increase it by up to 4%. In the case of tendering procedures carried out in aggregate by central purchasing bodies, the amount of the guarantee shall be fixed in the notice or in the invitation to a maximum of 2% of the basic price. In the event of participation in the competition of a temporary grouping of undertakings, the fiduciary bond must include all companies in the grouping. In the cases referred to in Article 36, paragraph 2, letter (a, the contracting entity may not require the bonds provided for in this Article.
2. Subject to the limits on the use of cash as referred to in Article 49, paragraph 1 of Legislative Decree No. 231 of November 21 2007, the security may be, at the option of the tenderer, in cash, bank transfer, or bank draft or in government securities guaranteed by the State at the filing date of the deposit, at a provincial treasury branch or authorized agency, by way of a pledge in favor of the contracting authority. Paragraph 8 applies and, with regard to the release, paragraph 9.
3. The performance bond as per paragraph 1 can be, according to the contractor’s discretion, issued by banking or insurance institutions meeting the solvency requirements of the laws governing their respective activities or issued by the financial intermediaries registered in the register referred to in Article 106 of Legislative Decree 1 September 1993, no. 385/1993, which, as their exclusive or predominant business, issue guarantees and which are audited by an auditing firm registered in the Professional Register provided for by article 161 of Legislative Decree no. 58 of 24 February 1998, and which meet the minimum solvency requirements set forth by current bank and insurance legislation.
4. Said bond must expressively provide for the waiver of the principal debtor’s right to enforce preliminary payment, the waiver of the exception as per article 1957, para. 2, of the Italian Civil Code, as well as for the guarantee to be applied within fifteen days, further to a simple written request from the contracting party.
5. The bond must be effective for at least one hundred and eighty days from the date of submission of the tender. The notice or invitation may require a bond with a validity limit of greater or lesser duration in relation to the probable duration of the proceedings, and may also require that the tender be accompanied by the guarantor’s undertaking to renew the bond at the request of the contracting entity in the course of the procedure, for the duration indicated in the notice, if, at the time of its expiry, the award has not yet taken place.
6. The bond covers the failure to sign the contract after the award due to any facts attributable to the policyholder or the adoption of interim anti-mafia information issued pursuant to Articles 84 and 91 of Legislative Decree No. 159 of September 6 2011. The bond is released automatically upon signing the contract.
7. The amount of the bond and of any renewal is reduced by 50% for economic operators that have been issued the quality system certification of the series UNI CEI ISO9000, issued by certified bodies in compliance with the European standards of the series UNI CEI EN 45000 and the series UNI CEI EN ISO/IEC 17000.The 50% reduction, not cumulated with the reduction in the first sentence, also applies to micro, small and medium-sized enterprises and groupings of economic operators or ordinary consortia consisting solely of micro, small and medium-sized enterprises. In contracts relating to works, services or supplies, the amount of the bond and its possible renewal is reduced by 30%, which can also be combined with the reduction in the first sentence, for economic operators holding registration in the Community Eco-Management and Audit Scheme (EMAS), pursuant to regulation EC) No. 1221/2009 of the European Parliament and Council, of November 25 2009, or 20% for the operators holding environmental certification under standard UNI ENISO14001. In service or supply contracts, the amount of the bond and its possible renewal is reduced by 20%, which can also be combined with the reduction in the first and second sentences, for economic operators holding, in relation to goods or services constituting at least 50% of the value of the goods and services covered by the contract, of the EU Ecolabel pursuant to regulation EC) No. 66/2010 of the European Parliament and Council, of November 25 2009. In works, services or supplies contracts, the amount of the bond and its possible renewal is reduced by 15%, also able to be combined with the reduction in the first, second, third and fourth periods for economic operators that develop a greenhouse gas inventory under UNI EN ISO 14064-1 or a product carbon footprint under standard UNI ISO/TS 14067. In order to qualify for the reductions referred to in this paragraph, the economic operator shall indicate, at the time of the tender, possession of the relative requirements and document this in the manner prescribed by the current rules. In contracts for goods and services, the amount of the bond and of any renewal thereof is reduced by 30 percent, not to be combined with the reductions under the previous points, for economic operators that have been assigned a legality rating or company rating or holding a certification of the organizational model, pursuant to Legislative Decree no. 231/2001 or a 8000 social accountability certification, or certification of the health and safety system for workers, or the OHSAS 18001 certification, or the UNI CEI EN ISO 50001 certification concerning the energy management system or the UNI CEI 11352 certification concerning operations as an ESC (energy Service Company) for the quality supply of energy services and for economic operators holding the ISO 27001 certification concerning the information security management system) cannot be combined with other reductions provided for by the regulation, as per the above formula. In the case of combined reductions, the subsequent reduction must be calculated on the amount resulting from the previous reduction.
8. The tender shall be accompanied by the undertaking of a guarantor, under penalty of exclusion, other than the guarantor that issued the performance bond, to issue the performance bond for the performance of the contract referred to in Articles 103 and 104, if the tenderer becomes the awarded party. This paragraph does not apply to micro, small and medium-sized enterprises or temporary groupings and ordinary consortia consisting solely of micro, small and medium-sized enterprises.
8-bis. Fiduciary bonds shall be in accordance with the scheme type referred to in Article 103, paragraph 9. paragraph introduced by legislative decree no. 56/2017 in force from 20-5-2017
9. The contracting entity shall, in the notification of the award to the unsuccessful tenderers, at the same time, provide for the release of the bond referred to in paragraph 1, promptly and in any case within a period not exceeding thirty days from the award, even when the period of effectiveness of the bond has not expired.
10. This Article shall not apply to service contracts relating to the drafting of the design and the security and coordination plan and the tasks of supporting the activities of the sole project manager.