Commission Delegated Regulation (EU) No 1268/2012 (repealed)Show full title

[F1 Section 4 U.K. Performance of the contract, guarantees and corrective actions

Article 163 U.K. Guarantees (Article 115 of the Financial Regulation)

1. If the contracting authority decides to request a guarantee, it shall announce this in the procurement documents.

2. Where contractors are required to submit a guarantee, it must be for an amount and a period that are sufficient for it to be called.

3. The guarantee shall be supplied by a bank or an authorised financial institution accepted by the contracting authority. It may be replaced by a joint and several guarantee by a third party, after acceptance by the contracting authority.

The guarantee shall be denominated in euro.

It shall have the effect of making the bank or financial institution or the third party stand as irrevocable collateral security, or first-call guarantor of the contractor's obligations.

Article 164 U.K. Guarantee for pre-financing (Article 115 of the Financial Regulation)

1. Once the contracting authority has established the need for a pre-financing, it shall assess the risks associated with pre-financing payments, before launching the procurement procedure, taking into account in particular the following criteria:

(a) the estimated value of the contract;

(b) its subject matter;

(c) its duration and pace;

(d) the structure of the market.

2. No guarantee shall be required for low value contracts referred to in Article 137(1).

The guarantee shall be released as and when the pre-financing is deducted from interim payments or payments of the balance to the contractor in accordance with the terms of the contract.

Article 165 U.K. Performance guarantee (Article 115 of the Financial Regulation)

1. On a case-by-case basis and subject to a preliminary risk analysis, the contracting authority may request a performance guarantee to ensure that the contractor complies with its substantial contractual obligations.

2. The performance guarantee shall amount to a maximum of 10 % of the total value of the contract.

3. It shall be fully released after final acceptance of the works, supplies or complex services, within a period subject to Article 92(1) of the Financial Regulation to be specified in the contract. It may be released partially or fully upon provisional acceptance of the works, supplies or complex services.

Article 165a U.K. Retention money guarantee (Article 115 of the Financial Regulation)

1. On a case-by-case basis and subject to a preliminary risk analysis, the contracting authority may request a retention money guarantee to ensure that the contractor remedies defects during the contract liability period.

The retention money guarantee shall not be used in a contract where a performance guarantee has been requested and not released.

2. A retention money guarantee amounting to a maximum of 10 % of the total value of the contract may be constituted by deductions from interim payments as and when they are made or by deduction from the final payment.

The contracting authority shall determine the amount which shall be proportionate to the risks identified in relation to the performance of the contract, taking into account its subject matter and the usual commercial terms applicable to the sector.

3. Subject to approval by the contracting authority, the contractor may request to replace the retention money guarantee by a guarantee referred to in Article 163.

4. The contracting authority shall release the retention money guarantee after the expiry of the contractual liability period, within a period subject to Article 92(1) of the Financial Regulation to be specified in the contract.

Article 166 U.K. Suspension in the event of substantial errors or irregularities (Article 116(3) of the Financial Regulation)

If, after suspending performance of the contract in accordance with Article 116(3) of the Financial Regulation, presumed substantial errors or irregularities or fraud are not confirmed, performance of the contract shall resume as soon as possible.]

Textual Amendments

F1 Substituted by Commission Delegated Regulation (EU) 2015/2462 of 30 October 2015 amending Delegated Regulation (EU) No 1268/2012 on the rules of application of Regulation (EU, Euratom) No 966/2012 of the European Parliament and of the Council on the financial rules applicable to the general budget of the Union.