Article 106. Guarantees for participation in the procedure.

1. The offer is accompanied by a provisional guarantee equal to 2 percent of the total value of the procedure indicated in the notice or invitation. To make the amount of the guarantee proportionate and adequate to the nature of the services covered by the assignment and the degree of risk associated with it, the contracting authority may justifiably reduce the amount by up to 1 percent or increase it by up to 4 percent. In the case of tender procedures carried out in aggregate form by central purchasing bodies, the amount of the guarantee is set in the notice or invitation at a maximum of 2 percent of the overall value of the procedure. In the event of participation in the tender by a temporary group of companies, even if not yet established, the guarantee must cover the obligations of each company in the group itself. The provisional guarantee can be constituted in the form of a deposit or a surety. 2. The deposit is constituted at the institute in charge of the treasury service or at the authorized companies, as a pledge in favor of the contracting authority, exclusively by bank transfer or with other electronic payment tools and channels provided for by current legislation. As regards release, paragraph 10. applies. 3. The suretyship referred to in paragraph 1, at the choice of the contractor, can be issued by banking or insurance companies that meet the solvency requirements established by the laws governing their respective activities. , or by financial intermediaries registered in the register referred to in article 106 of the consolidated law on banking and credit matters, referred to in legislative decree 1 September 1993, n. 385, which exclusively or mainly carry out the activity of issuing guarantees and which are subject to audit by an auditing company registered in the appropriate register and which have the minimum solvency requirements required by current insurance banking legislation. The surety bond must be issued and signed digitally; it must also be verifiable electronically at the issuer or managed through the use of platforms operating with technologies based on distributed registers pursuant to article 8-ter, paragraph 1, of the legislative decree of 14 December 2018, n. 135, converted, with amendments, by law 11 February 2019, n. 12, compliant with the characteristics established by the AGID with the provision referred to in article 26, paragraph 1. 4. The guarantee must expressly provide for the waiver of the benefit of preventive enforcement of 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 from the contracting authority. 5. The guarantee must be effective for at least one hundred and eighty days from the date of submission of the offer. The notice or invitation may require a guarantee with a longer or shorter term of validity, in relation to the presumed duration of the procedure, and may also require that the offer be accompanied by the guarantor's commitment to renew the guarantee, upon request of the station contracting during the procedure, for the duration indicated in the notice, in the event that the award has not yet taken place at the time of its expiry. 6. The guarantee covers non-awarding after the award proposal and failure to sign the contract attributable to any fact attributable to the contractor or resulting from the adoption of disqualifying anti-mafia information issued pursuant to articles 84 and 91 of the code of anti-mafia laws and prevention measures, referred to in legislative decree 6 September 2011, n. 159. 7. The guarantee is automatically released upon signing the contract. 8. The amount of the guarantee and its possible renewal is reduced by 30 percent for economic operators to whom it is issued, by accredited bodies, to pursuant to the European standards of the UNI CEI EN 45000 series and the UNI CEI EN ISO/IEC 17000 series, the certification of the quality system compliant with the European standards of the UNI CEI ISO 9000 series. The 50 percent reduction applies, not cumulative with that referred to in the first period, towards micro, small and medium-sized enterprises and groups of economic operators or ordinary consortia made up exclusively of micro, small and medium-sized enterprises. The amount of the guarantee and its possible renewal is reduced by 10 percent, cumulative with the reduction referred to in the first and second periods, when the economic operator presents a guarantee, issued and signed digitally, which is managed through the use of platforms operating with technologies based on distributed registers pursuant to paragraph 3. The amount of the guarantee and its possible renewal is reduced up to a maximum amount of 20 percent, cumulative with the reductions referred to in the first and second periods, when the economic operator possesses one or more of the certifications or brands identified, among those provided for in Annex II.13, in the initial tender documents which also establish the amount of the reduction, within the aforementioned maximum limit. In case of cumulative reductions, the subsequent reduction is calculated on the amount resulting from the previous reduction. To benefit from the reductions referred to in this paragraph, the economic operator reports, at the time of the offer, possession of the relevant requirements and documents it in the ways prescribed by the regulations in force. Upon first application of the code, Annex II.13 is repealed from the date of entry into force of a corresponding regulation adopted pursuant to article 17, paragraph 3, of law no. 23 August 1988. 400, with decree of the Minister of Infrastructure and Transport, in agreement with the Minister of the Environment and Energy Security and the Minister for European Affairs, which replaces it entirely also as an annex to the code. 9. Surety guarantees must comply with the standard scheme referred to in article 117, paragraph 12. The second and third periods of the same paragraph also apply. against them upon release of the guarantee referred to in paragraph 1. The guarantee in any case loses effectiveness upon expiry of the period of thirty days from the award. 11. This article does not apply to service contracts having as their object the drafting of the design and safety and coordination plan and the tasks of supporting the activities of the RUP. EFFECTIVE FROM: 1 July 2023 (the provision referred to in art. 106, paragraph 3, last sentence becomes effective from 1 January 2024)


REPORT Article 106 regulates the guarantees for participation in the procedure, intervening on the value of the provisional guarantee, on the benefit of enforcement, on the effectiveness and operatio...


NEW • To calculate the guarantee, reference must be made to the overall value of the procedure (therefore including any renewals and options), replacing the base price parameter. • The guarantee cov...
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