According to Art. 134 sec. 1 point 5 of the Public Procurement Law, the SWZ contains information on the security on due performance of the contract, if the contracting authority provides for the obligation to provide it. Therefore, the contracting authority is not obliged to demand it. However, if the contracting authority decides to require securing the contract, the legislator in Section VII Chapter 2 of the Public Procurement Law regulates its amount, method and forms of payment as well as the date and method of return.

The awarding entity may demand a security for the proper performance of the contract in the amount not exceeding 5% of the total price specified in the offer or the maximum nominal value of the contracting authority’s obligation under the contract. This is therefore a difference to the current legislation, which allows for a security demand of 10% of the offer price.

The new act contains an exception, however, indicating that in exceptional situations, if it is justified by the subject of the contract or the occurrence of a risk related to the performance of the contract, the contracting authority may establish a security for the proper performance of the contract in the amount exceeding the above-mentioned 5% of the total price specified in the offer or the maximum nominal value of the contracting authority’s obligation under the contract. However, this value may not exceed 10% of the total price specified in the offer or the maximum nominal value of the contracting authority’s obligation under the contract. Moreover, the contracting authority is required to justify the increase in the security amount in the SWZ or other procurement documents. (Article 452 (2) and (3) of the PPL Act).

The new act also specifies the deadline for returning the security on due performance of the contract, indicating that the contracting authority returns the security within 30 days from the date of performance of the contract and recognition by the contracting authority as duly performed. At the same time, as now, the Ordering Party may retain an amount not exceeding 30% of the security to secure claims under the warranty for defects or guarantees.