1. A contracting authority may make subject participation in the procedure to the condition of provision of a tender guarantee to be provided by tenderers by the beginning of the validity period, in the amount defined in the contract notice. Tenderers shall produce proof of having the tender guarantee provided to the contracting authority. The tender guarantee ensures the observance of the validity period of the tender and the contracting authority may not make subject the participation in the participation stage to the condition of provision of a guarantee.
2. The tender guarantee may be provided by having the prescribed sum deposited into the payment account of the contracting authority or by the provision of a guarantee or surety undertaken by a financial institution or an insurance company or by furnishing a promissory note issued pursuant to an insurance contract containing surety, at the choice of the tenderer. The place of payment and the payment account number of the contracting authority, together with the method of evidencing such payment shall be defined in the contract notice or in the invitation to tender.
3. The amount of the tender guarantee shall be established in a way that ensures equal opportunity to all tenderers and set so as to cover any potential cost to be incurred, as foreseeable, by the contracting authority in the event of infringement of the validity period of the tender as described in paragraph 4. Where the contracting authority allows the division of the public procurement into lots, the tender guarantee and the amount thereof shall be set separately for each lot.
4. If the tenderer withdraws its tender during the validity period or the contract is not concluded due to a reason arising within the tenderer‘s sphere of interest, the tender guarantee shall be forfeit and can be claimed by the contracting authority, except in the case set out in Article 131(9). Furthermore, the tender guarantee shall be forfeit and can be claimed by the contracting authority, where the tender is to be regarded as invalid on the ground that the tenderer, at the request of the contracting authority, does not submit or does not submit properly the documents supporting his self-declaration included in the European Single Procurement Document (ESPD), concerning his tender subjected to the validity period.
5. The tender guarantee shall be refunded
- to tenderers within ten days after the withdrawal of the contract notice or the invitation to tender, or after having their tender declared invalid or after the dispatch of the notice on the results of the procedure to the tenderers;
- to the successful tenderer or, where it is referred to in the summary, to the tenderer ranked second, within ten days after the conclusion of the contract, unless the contract notice stipulated the tender guarantee to be retained and transferred as additional security which confirms the ensuing contract.
6. If participation in the procedure was made subject to the condition of the provision of a tender guarantee, the contracting authority shall, within ten days, refund double the amount in case of a tender guarantee furnished in cash, or an amount equivalent to the tender guarantee in all other cases
- to tenderers in the event of failing to notify tenderers of the results of the procedure during the validity period as set in the invitation to tender or during the extended validity period;
- to the successful tenderer and, where it is referred to in the summary, to the tenderer ranked second, in the event of failing to conclude the contract, except in the case set out in Article 131(9).
7. Where, before the end of the validity period, the contracting authority requests tenderers to maintain their tender, in the cases set out in this Act, and any of the tenderers or all tenderers choose not to maintain the tender, the guarantee shall be refunded within ten days after the receipt of the tenderer’s statement or the dispatch of the notice on the results of the procedure to the tenderers, without application of the provisions set out in paragraph 6. Tenderers who maintain their tender shall be requested by the contracting authority in the invitation to maintain the tender to offer the same guarantee as the one that was offered before, for the extended validity period of the tender.