The Council of the authority for the supervision of public contracts for works, services and supplies. Were subjected to the attention of the authorities, some questions of interpretation concerning the rules on the relations between lessor and Enterprise Administration dealership during execution of work foreseen in the concession contract of public works. In particular, it was asked whether they should fully implement the rules governing accounting jobs currently envisaged by the Decree of the President of the Republic No 554/1999 (hereinafter referred to as «rules») in relation to public procurement. To this end, in implementation of the provisions under art. 8 of Legislative Decree No. 163/2006 (hereinafter the "code"), the authority has prepared a summary of the most important issues related to the execution phase of the works envisaged in a concession, such as auditing and supervisory functions structure and, more particularly, the shape and functions of Director of works, responsible for the security, in charge of the proceedings and the test pilot. On the basis of this document the Authority initiated a formal procedure prior consultation online and a hearing to ensure participation of administrations and interested parties. Following this consultation, the authority has adopted the following determination with a conscious positive impact assessment in terms of greater certainty of relationships, a more accentuated warranty procedures, improved efficiency of market relations. 1. The distinctive elements of the public works concession with respect to the contract. In order to provide an answer to the problems mentioned in the introduction, you must first define the legal nature of public works concession contract evidencing the main characteristics. The code defines (art. 3, paragraph 11) concessions as contracts for pecuniary interest relating to the design and execution of works, as well as their functional and economic management, that "have the same type as a public works contract except for the fact that the consideration of the work consists solely in the right to exploit the work or in this right together with payment» (in the previous law no substantial continuity with the 109/1994 where in art. 19, paragraph 2, it was determined that "the consideration in favour of the concessionaire consists either solely in the right to manage operationally and economically exploit all works», admitting the possibility of recognizing a price, fixed in the race, only to the extent necessary to ensure the financial balance of the investment in relation to the quality and cost of service). A special feature of the concession Institute's hiring by the dealer of the risk relating to the management of services which is made in relation to the intervention trend instrumental ability to finance itself, namely opera to generate a cash flow resulting from management to reward their investment. In granting public works contractor, as a rule, designs and executes the work and through the management and economic exploitation of the work gets in return the proceeds in consideration for the building, possibly with a price. It should be noted that in accordance with the provisions of art. 143, paragraph 9, of the code are fully into the concept of granting both cases where the concessionaire shall assume, in addition to the risk of construction, the demand risk (model roadways), how much the concessions where the risk of construction adds the risk of availability (model hospitals, prisons etc.), which is coming back ' widely apart. In the absence of alea related to management, do not configure the concession but the contract, in which there is only the entrepreneurial risk arising from the incorrect assessment of construction costs compared to the consideration that it senses as a result of the execution of the work. In granting, at your own risk, you add the risk of instrumental work that services market made and/or the c.d. risk of availability, on which it will be back later. The European Commission interpretative communication of April 12, 2000, outlines the criteria in distinguishing between sense above grant and contract: it is stated that the peculiar trait of public works concessions is to confer a right of exploitation of the work which allows the dealer to perceive user proceeds by way of consideration for the supply of construction work (for example, in the form of a toll or fee) for a specified period of time. The right of exploitation implies also the transfer of its responsibility that involves technical, financial and managerial aspects of the work. On the contrary, it is in the presence of a public works contract when the cost of the work rests essentially on the contracting authority and the contractor shall not remunerate through the proceeds received by the users. Practice shows that in certain cases the lessor intervenes partly in financial risk assumed by the concessionaire. It happens, so that Government support in part the construction cost and/or the concession management in order to reduce the amount of benefits paid by the end user. This intervention can be made according to different modalities during the construction phase with fixed payments in progress and it handles with payments in lump form guaranteed, or depending on the number of users and does not necessarily end in changing the nature of the contract. According to the Commission, if the price paid only partially covers the cost of the work, the dealer must always assume a significant portion of the risks associated with operations. The payment of amounts in account management is a result of the fact that the dealer must, for reasons relating to the public interest, social prices ' and therefore ' practice receives this title compensation by the Administration in a single payment or in staged payments anymore. Such participation of the administration costs of operation does not relieve the dealer by a significant part of the risk management. An essential element of public works concession and, therefore, the attitude of the work subject to achieve a cash flow that can allow you to repay all or part of the investment. Precisely in relation to this attitude, it is used to classify the works into three types: hot, cold and warm. Are those works with an inherent ability to generate income through revenues from user charges, to such an extent that repay the investment costs and remunerate adequately the capital involved during the life of the concession; cool are the works for which the private person that builds and manages directly provide services to the public administration and derives its remuneration from payments made by the same. These works makes reference to art. 143, paragraph 9 of the code, quoted above. Between these two types of works, they put themselves in the middle of those whose revenues from user charges are not sufficient to repay all of the resources used to achieve them, making it necessary for the financial feasibility, a Government grant (known as lukewarm works). The public works concession, as it's been conclusively clarified in art. 3, paragraph 15 ter, introduced into the code by the third corrective Decree, falls between the contracts of public private partnerships (PPP), in which it provided in any case total or partial financing borne by individuals. This article addresses the decision of Eurostat February 11, 2004 with the purpose of establishing the conditions under which a work is deemed public budget or the private sector. The decision applies, so just where the State is the main buyer of goods and services provided by the infrastructure, whether the application is originated from the same public part that by a third party. This is the case, for example, public services such as health or education, in which, for a replacement mechanism, the benefits paid to citizens are paid by the public administration or road infrastructure, whose tolls are paid by the public through shadow tolls (known as the shadow tolls). This is «works» that involve financial expense from the State distributed over the years. Eurostat identifies three main types of risk in the PPP to discover whether or not a work concerning the national budget: 1) construction risk (the risk linked to delays in delivery, additional costs, inadequate standards);
2) risk of availability (it is the risk related to performance of the services that the private partner should make);
3) demand risk (the risk linked to several volumes of service demand that the private partner must meet). Specifically, in the above decision, a work created with the PPP will affect ' on public budgets only if the private partner claims the risk of building and at least one of the other two risks (risk of availability or demand risk). Otherwise, works with PPP fall on public budgets with obvious consequences in terms of the impact on the deficit. This decision confirms that a concession contract or public private partnerships substantially differs from the contract, in relation to risk allocation to the private partner. 2. The discipline of public works concession in the code. The award of the concession of public works, regardless of the specificity of the object of the contract, can be made according to the methods provided for in art. 144 et seq., and art. 153 (project finance). Regardless of the method of assignment of the concession, the dealer can perform the work directly or entrust them to a third party; the grantor can enforce that at least 30% of the jobs are contracted out or get that offer, the dealer indicates the value of the work which it intends to subcontract to third parties (see article 146 of the code). The discipline outlined in the Code and the rules for the matter of public works concessions, while it is detailed to the profiles related to the assignment of the concession, it's equally as regards the execution of the works. What as the discipline prescribed by the code for the execution of the works is dictated mainly by the construction of public works. With regard to public works concessions, the subject matter is his discipline, albeit synthetic, in two articles of the code: art. 142 for concessions entrusted on the basis of a preliminary draft and art. 152 for concessions entrusted on the basis of the feasibility study. In order to examine the legal regulations for the execution of public works concession contracts, it is necessary to consider some specific elements of such contracts with respect to the contract. First of all, it should be recalled that the public works concession involves both relations between directors grantor and concessionaire is the possible relationship between dealer and contractor third, since the concessionaire, as specified above can perform the work directly or entrust them to a third party. The dealer, in turn, coat the nature of private party or contracting. In addition, we can foresee a Government grant money-to ensure the financial equilibrium of investments and the related management art. 142 of the code provides for a separate regulation in relation to the legal status of the concessionaire, the contracting authority or private entity. In the first case, in accordance with art. 142, paragraph 3, to contracts of work contracted out all provisions of the code shall apply unless waived by chapter II of title III of part II that dictates the specific discipline of concessions. In the latter case, paragraph 4 of the same article. 142 stipulates that concessionaires which are not contracting authorities are required to apply for contracts contracted out 149-151 articles, and as compatible and not specifically accepted as departures, the rules on advertising and terms, General requirements, qualification of economic operators, planning, litigation, etc. and, for run time, subcontracting, testing and security plans. There is a reference to legislation on the supervision of works; However, it must be borne in mind, for example, art. 64 of Decree of the President of the Republic June 6, 2001, # 380 (consolidated text of the laws and regulations on construction), under which the execution of the works of normal reinforced concrete and prestressed concrete and metal structure must take place under the supervision of a qualified technician, registered in its register, which with the manufacturer, each for parts of competence assumes responsibility for compliance of the work on the project, the project's compliance with implementing provisions, of the quality of the materials used and the installation. The dealer is then held on the appointment of a Director/Technical Manager of works that have the responsibility for the acceptance of materials, on the basis of quantitative and qualitative control of official surveys of its mechanical properties. By virtue of art. 142, subsection 3 of the code, it appears, therefore, peaceful enforcement of Legislative Decree No 163/2006 to public works contracts entrusted by concessionaires which are contracting authorities. In other words, if the dealer can be attributed to the category of contracting authorities invoking rules of integral door code feel clear contracts contracted out the enforcement of construction management and public accounting. Moreover, article. 148 stipulates that dealers who are contracting authorities shall apply the provisions of the code not only for the award, but also for the performance of contracts entrusted to third parties. The discipline described above arises in substantial continuity with the existing structure at the entry into force of the code: the authority, by resolution No. 191 of May 16, 2001, concerning the regulations contained in the Law 109/94, stated that it is up to the dealer's exclusive, where the execution of the work contracted out to third parties by adopting all appropriate measures towards the contractor in relation to issues concerning the contractual relationship with the dealer itself, such as the introduction of new prices, respect for deadlines for execution , verifying proper execution. It is, instead, the grantor against the dealer verification of compliance of the work performed to the approved design, regulations and implementation rules. Regarding concessions entrusted by means of project finance, reference should be made to chapter III "(financial advisor, project companies and discipline of financial lease for jobs)" of that title III of the code. In particular, article. 152 stipulates that such procurement procedures and principles apply common provisions, the planning, direction and execution of the work, the litigation, the coordination provisions, final and transitional. Apply also by analogy with the provisions of the discipline of project finance, the rules laid down in Title I or title II of part II (in relation to the threshold of the amount of the investment). The provision has placed doubts because, in its wording, appears to provide for the application of rules on management and accounting jobs with ' custody procedures», and not downstream procurement. We must however keep in mind that, as already stated above, even the procedures regulated by art. 153 lead to the award of a public works concession; on the other hand, the "project finance", referred to in the said article of the code, it is a financing technique used by economic operators for public works concessions entrusted in accordance with the procedure determined by art. 142 ff. Therefore, regardless of the mode of custody (article 143 and article 153 of the code), the execution of public works concessions and in particular to contracts to third parties cannot but logically apply a uniform discipline. As a result, the dealer doesn't contracting authority is not bound to apply the provisions of the regulation relating to accounting of public works to works carried out either directly or through its subsidiaries as specified in art. 149, paragraphs 3 and 4 of the code-that through contracts to third parties. With regard to additional aspects of Volkswagen dealer relationships, is that the grant has been entrusted in accordance with the ordinary procedure or through project finance, the work carried out under a grant must be submitted-by express provision--either to the final inspection of the work (article 142 of the code) is testing in progress (article 141 of the code), as falling within the field of public works. We must, then, consider that art. 141 «testing of public works "(located in chapter I of TitoloIII) reads in cases of assignment of jobs in granting its award at the head of the supervisory procedure in all phases of the work, checking on compliance with the Convention. Consequently, article. 8, paragraph 1) (r) of Regulation (reproduced in article 10 implementing regulation scheme of the code) includes the functions of the head of the proceedings that "watchdog carrying out work in the concession of public works, ensuring contractual compliance» and art. 86 (the identification of those powers in the contract is confirmed by art. 115 code implementing regulation scheme of contracts, pending) establishes that the concession contract must contemplate the powers reserved to the contracting authority, including the criteria for oversight work by the head of the proceedings. This in line with the provisions of art. 119 of the code that the person responsible for the the procedure takes place at run time of public contracts (and concessions) the role of "Director of enforcement '. Therefore, in the case of entrustment of creation of the work under the concession, the legislation does not define a priori the concrete method of conducting the supervisory function of the proceedings but States that these, however required even in the case of outsourcing the work by the dealer, may be determined primarily under the contract, since in the latter document it is possible to identify major and minor powers reserved to the customer and Therefore, several subsequent supervisory mode under which the responsible of the procedure should follow. Besides, it's useful to recall that, in accordance with the discipline code, the Act around which revolves the relationship's concession contract between grantor and concessionaire, as it is obtainable from the definition of the concession mentioned in the first paragraph, by art. 86 of the Decree of the President of the Republic # 554/1999 and the reconstruction of the Institute of the grant which constituted by rights and obligations of the parties given by paragraph 1 of art. 143. It follows the opportunity in order to ensure the full protection of the grantor with respect to the implementation phase of the public works, to predict in the concession contract in detail the supervisory task conferred on the head of the proceedings, as it says ' better as well. That forecast, however, aimed to ensure fulfilment of the art of opera as well as on-time enforcement mechanisms provided, must be made in relation to the specific factual context, taking account also of the forecast or not, in the context of the grant, a Government grant. The power of control by the lessor in the execution phase of the work has the purpose not only to ascertain who runs professionally and in accordance with the contractual and planning forecasts but also have cognizance, through appropriate accounting, its value as an index of adequacy ' of the tariff charged to the users as well as efficient operation and maintenance of the work by the dealer. 3. tips for an efficient and fair regulation of the relationship between grantor and concessionaire on the basis of the regulatory framework first outlined, it is appropriate to rebuild the structure of the relationship between grantor and concessionaire who must be contained in the concession contract. In this agreement, unlike that of the contract where the cost of the work is borne by the customer, not as a rule laid down for the payment of a fee to be granting administration's garage, but the consideration consists either solely in the right to manage operationally and economically exploit the work done. In the case where a Government grant money, to ensure the financial equilibrium of investments and the related management, art. 86 of regulation establishes, to the letter i) of paragraph 1, the contract must provide for the method of payment of the price. About vale draw distinction, described above, in the context of works likely to be made through the Institute of construction and management, among the works of c.d. hot, cold and warm. In the case of cold works the Administration's private liable for payment to the grantor and concessionaire not just any price-in real estate or in money-but to pay periodically on c.d. Canon of availability and the fees for services rendered to the administration. In that case the outlay made by the grantor's relevant not only during the period of realization of the infrastructure but also in the period of ownership. However, this outlay, so are effectively transferred the risks raised in the contract, essential aspect that differentiates the granting by the contract, is subject to the exact fulfilment of the contractual obligations on the part of the private concessionaire. This requires a constant and effective control by the contracting activity not only on the proper implementation of the contract, but also the keeping of accounting and management of work, as specified above. It is confirmed as relevant for licensing administration accounting work carried out under a public works concession contract, when there will be a price paid by the lessor administration, an event that always manifests in the case of cold and lukewarm works works. It is necessary therefore that the concession contract is established the kind of reporting to hold, in order to enable the same administration to exercise properly the power of control and supervision due to it, especially for the purposes of public contribution. Similarly, it does not appear consistent with the Institute of the concession, it's probably useful for effective control, timely application of legislation publicity regarding accounting jobs. In other words, the need to introduce in the concession contract, which constitutes the central element of regulation of the relationship between grantor and concessionaire, special clauses to allow the grantor to inspect the construction work subject of the concession-including through the drafting of a accounting-does not apply to the accounting of public works dictated by the legislature for other purposes. If, on the other hand, the dealer can be attributed to the category of contracting authorities, and peaceful application of the rules on public procurement accounting limited contracted out. For the field of motorway concessions, considerations so far as regards the general legislation governing the discipline of public works concessions need to be supplemented in the light of the special framework of industry, recently revisited pursuant to art. 2, paragraphs 82 et seq of Decree Law No 262/2006, converted by law No. 286/2006 and directives contained in CIPE June 15, 2007, n. 39. The purpose underlying these provisions is to ensure greater transparency in the relationship between grantor and concessionaire and better quality of the infrastructures and services, in terms of economy and efficiency of proceedings during the concession relationship. To this end, it is expected that needs to be made between Anas and every dealership, on the occasion of the first update of the financial plan — the first revision of the Convention to be subsequent to the entry into force of the new legislation, a single Convention that must, among other things, secure method of enforcement of contractual obligations and penalties in case of default; in particular, the provisions contained in the Convention only contemplate the obligation of dealers on the keeping of accounting, in a timely and analytical, is being built both in stage management. The functions of supervision and control, attributed to the proceedings shall be conducted by ANAS by means of an appropriate internal Office (Inspectorate for the supervision of Highway concessionaires-IVCA). It is observed, then, that even with reference to the motorway sector appears fundamental agreement between Licensor and licensee. On the operational level, in the light of the above considerations, it is considered essential for the proper execution of the concession contract that the Convention regulates in detail the relationship between grantor and concessionaire during construction stage management by identifying in detail the rights and obligations of the parties. In particular, it is believed that the concession contract, as already indicated by the authority in determining No. 3 of 2009 in relation to art. 153, should include, inter alia: a) the methods of preparation of final and Executive projects;
b) specification of the method of carrying out the works;
c) specification of the means of supervision and approval of the grantor, the head of the proceedings, during preparation of the final and Executive projects;
d) specification of the lessor's supervisory powers, the head of the proceedings, when carrying out the works to ensure time and cost monitoring;
e) methods of disbursement of public aid where applicable;
f) specification of the lessor's supervisory powers, the head of the proceedings relating to safety;
g) the specification of the characteristics of the services to be provided and their management;
h) methods of revision of the financial plan;
the basic assumptions and conditions) that determine the economic-financial balance investments and associated management;
j) specification of powers of lessor's control when it handles the intervention;
k) overview of all risks of any nature which may occur during the total intervention (upon conclusion of the contract at the end of the concession), with an indication of the subject (grantor or competitor) who must take charge of individual risk, in case it happens;
l) the duration of the concession;
m) the obligation to deliver the intervention made at the end of the concession in perfect condition and function in material availability of contracting without any charge to the same;
n) any obligation to outsource contracts, without prejudice to the right of the competitor to increase that percentage. These aspects need to be integrated with as required by law, for example in the area of securities and guarantees, as well as the content provided for in art. 86 of the Decree of the President of the Republic # 554/99. On the merits of the points listed above, it is noted that given the fundamental role which takes charge of the proceedings in the implementation of the intervention, the grantor shall appoint a technician equipped with adequate professional skills. What because, among other things, should be entrusted to the or supervision of the construction and, in the case of a price, even the accounting control activities necessary for the payment of the same, tasks which, as mentioned, must be specified and foreseen in the concession contract. It draws attention to the fact that the contract must also specify the method of payment of the price in stage management and methods of payment of royalties from the Administration, provided in the case of works. As specified above, activity of supervision and control of the grantor is extended to the next phase to the execution of the work to ensure quality of service, maintenance of the work and the conditions laid down in the Convention, to which it is subordinated the outlay of the administration. The contract should also be envisaged, as required by art. 86 of regulation, the penalties applicable in the event of non-fulfilment of contractual obligations in the field of design and quality specifications. The commitments usually must be accompanied by the presence of criminal or specific promises. The same concession contract is expected in the absence of accounting public acts, the relay mode and resolution of disputes by the dealer in respect of the lessor, even referring to the legislation of public works contracts, as the agreement good-natured. It is to be expected, moreover, that any variation, to be made to the project, requires approval by the lessor. Consistent with this regulatory framework is the appointment, by the lessor, of the Commission (or the tester) during construction, which you configure which needed support to the control given to the head of the proceedings, in terms of both quality and quantity of the execution of the technical subject of the concession. As regards, moreover, the appointment of the Director of works, it is believed that it is up to the dealer, also taking into account the specific responsibility laid down in the provisions concerning the construction of reinforced concrete works, pursuant to art. 64 of the consolidated law on construction, quoted above. Can expect in the concession contract that the lessor should express the appreciation about appointments. Can't that be put back to the dealer the fulfilment of safety functions, as regards the appointment of the Coordinator at design-which can take place simultaneously with the conclusion of the Convention, bearing in mind that security plans are an integral part of the final design, as a rule object of the concession contract-and Coordinator at run time, because of the need for a continued relationship with contractors to evaluate any changes and interventions aimed at improving safety on site. Safety coordinators must possess the requisites under art. 98 Legislative Decree 81/2008, the Act on the protection of health and safety in the workplace. In the case of works of great economic or technical complexity, you can evaluate the opportunity to assist the head of the proceedings with a specific Pension Supervisory Body appointed by the lessor exercising by the lessor, the supervisory function on the design and execution of works and all the functions indicated in the articles of the Convention. An example of this workforce can meet the standard agreement in health sector prepared by the technical unit of project finance (cf. UTFP, «public-private partnership for the construction of hospitals. A sample contract, March 2008 "works concession, in: www.utfp.it). On the basis of the above considerations, the COUNCIL considers that: 1. the concession contract shall be established methods of reporting and accounting jobs, depending on the factual context, in order to enable the licensor to exercise effectively the power of control and supervision of the. Not mandatory for such reporting rules envisaged by the Decree of the President of the Republic # 554/99 for the accounting of assigned jobs under contract; 2. the dealer who has the nature of contracting authority is required to apply for contracts contracted out the rules of Decree of the President of the Republic No. 554/99 related to accounting of public works; 3. the concession contract shall specify the duties of the head of the proceedings, their extension and its method of operation, as well as further relevant aspects must be provided on the Executive floor, such as penalties for failure to comply with design and technical standards, the adoption of possible variants, as well as further aspects listed in this determination; 4. it is for the grantor the appointment of testers whose cost can be borne by the dealer; 5. it is for the dealer, the appointment of the Director of works and safety coordinators; can expect in the concession contract that we express the approval on the appointment of such persons.
Roma, March 11, 2010 President: Jtandkk the rapporteur: Botto