The COUNCIL whereas: as part of its activities, this authority is found quite frequently to analyze procurement whose accomplishment – in terms of time and cost of execution--it was conditioned by archaeological finds in the subsoil and the resulting activity of excavation and documentation as well as the further stages of evaluation and adoption of appropriate measures; all initiatives which are within the competence of the bodies responsible for the protection of cultural heritage. Specifically, in these cases was the suspension of work of significant duration, related not only to time materially necessary to carry out archaeological investigations, but also to the next for the drafting and approval of the variations in the process which took account of the value of the finds and their possible use or, at the very least, that safeguard integrity. Afterlife costs for more or different processes that are necessary for this purpose, procurement procedures for which materializes the contingency in question may result in unexpected financial commitments and far more significant, as a result of requests from contractors of work, which is manifested mainly in the form of reserves, in accordance with law, of acts focused on accounting and calculation of the losses arising from the continued management of working activities. The onset of this litigation is always tied to an objective circumstance encumbrances for the contractor, which precluded the deployment accomplished than organizational capacity that must distinguish each entrepreneurial reality and which expresses itself-in the execution of the works awarded with an accurate timetable of individual work stages and their overlaps, supplies, freight rates and so on in order to optimize the results of the management of the contract. The high probability that such a suspension of the work, arranged as a result of archaeological finds (and continued for as long as necessary to fulfill the related investigations of excavation and documentation) will be followed by the literal a grievance of the enterprise, thus inducing noted that the occurrence of the case in question is accompanied almost always to a significant increase in costs that the contractor will have to endure the controversy started with the possible consequences that this can entail in terms of judgement on the part of the Judiciary Committee. Hence the usefulness of working a few thoughts on the topic in question, in order to assess what could be-in the event of archaeological finds at work started and I mean «work in progress»-the possibility to limit the negative effects of economic order that this unexpected occurrence can induce the procurement procedure in progress. So much said, seen the need and the importance of knowing the warning of the Ministry of heritage and cultural activities regarding possible initiatives to be taken, they were heard during the hearing representatives placed on April 21, 2004. In that forum contributors have highlighted issues represented in detail long aspects to the attention of the Ministry, investing who has in mind the need to develop rules capable of allowing with equally effective action of protection and the realization of contracts "with the least sacrifice of the operators '. Deemed in law. A preliminary consideration to the nature of the area over which it is planned the construction of the public work, meaning that if it is subjected to a specific constraint. If so, the legislation provides that the organ in charge of protecting expresses its opinion-normally at the Conference of services-in order to clarify the contractor whether and under what conditions the work done is compatible with the principles on which is based the preservation of cultural heritage and, in particular, if the execution of specific categories of work carried out under the project may interfere with the protection of archaeological remains presumably exist underground. This hypothesis, sufficiently covered in its procedural aspects, should lead to a prior knowledge of the elements which impede the successful completion of the work, excluding so (or, at least, significantly reducing) the possibility that impeditive circumstances occurring during the work relating to archaeological finds, with adverse effects noted above. It is clear that the procedural step just described, although divided into simple and linear shape «», he can't guarantee any really positive effect if the relationship between the contractor and the body responsible for the protection is not based on maximum collaboration, diligence and clarity. To take a concrete example, if the Administration has called the Conference of services presents at that meeting a project lacking appropriate detailed insights regarding the type and geometrical characteristics of the Foundation structures, do not allow the expression of an opinion made by the representative of the competent archaeological Superintendence, or it can obtain an assent conditional on the running-in progress-the necessary related essays and evaluation of results without achieving any results, so useful to avoid interference between the conduct of the execution phase of the contract and action for the protection of archaeological heritage that might be present. The archaeological Superintendence territorial jurisdiction, on the other hand, cannot fail to represent in a comprehensive manner the needs resulting from its duties, without forgetting that its opinion intervenes in the context of a procedure to tender, whose purpose is the construction of a public work to be carried out through an activity conformed to the criteria set out in art. 1 of law No 109/1994. This cannot, of course, mean that the bodies responsible for protecting should base their action referring only to respect for the principles of efficiency, effectiveness, timeliness and economy of the administrative action in procurement. In fact, the protection of the archaeological heritage and, more generally, cultural ones, is intended to ensure the fruition, for generations to come, of a universal and invaluable heritage, the conservation of which assumes a value which would exclude from any monetization and arises-objectively-as a principle higher than those indicated in art. 1 of law No 109/1994 and so prevalent on them. However, it is easier to try to combine the exercise of all needed protection in the event of archaeological finds and the respect of timeliness and cost efficiency in the procurement process when-in a perspective of understanding of each other's competence limits and margins of operation, including financial-is assured mutual knowledge and preventive of all elements useful for the evaluation of the problems to be addressed as well as difficulties. In the view of the competent Ministry-which considers also essential preventive action-a viable option would be to "institutionalize" the presence of technicians of the Superintendent at the earliest stages of planning, with the outcome to ensure the most suitable methodological approach and the adoption of its determinations on certain cognitive bases, without restricting the expression of opinion appertaining to the only seat of conference services as a result of which flows almost inevitably-an authorisation subject-to cover subsequent investigations. In essence, the administration of BB. and the AA. CC. outlines and hopes the affirmation of a different role for the Superintendencies, exceeding that «authorisation» or «censorious», to coat to full cooperation and co-responsibility; in this regard, the recent implementation of some initiatives «pilot» by collaborating with other institutions would have allowed you to experience a more careful management of the contract to each other's needs. However, even in the hypothesis of an early collaboration at the stage of preliminary design, it's not uncommon that arises the necessity of running surveys or preventive excavations, which follows the need of obtaining financial resources to follow up the same. In this regard it is known as the Superintendencies complain about the continuing insufficiency of funds to proceed directly and autonomously to conduct archaeological investigations: from this perspective is the request that they should be the same Contracting authorities to adopt funding sufficient to ensure enforcement of appropriate archaeological investigation, to be conducted under the technical and scientific direction of the competent archaeological service, so as to enable it complete knowledge of the area and then the expression of opinions based on concrete scientific evidence. When hearing the Ministry held further to point out that this assumption-already invoked in some regulatory measures for particular works-has found explicit confirmation in the new cultural heritage and landscape code (Legislative Decree No 41 of January 22, 2004), in force since 1 St May 2004, establishing a legal requirement conseguenzialmente «generalized». On this subject it was also added that the necessary resources should allow-at first sight-the only execution of preliminary testing conducted under the scientific direction of the Superintendency responsible, it being understood that any significant findings involve-in natural order of things-the mandatory request for an excavation «belt», with its consequences in terms of availability of funds. To mitigate the effects of this possible financial uncertainty, the Ministry has formulated concrete hypothesis to anticipate the archaeological investigations at the preliminary phase of the project, while the economic entity, with the purpose of evaluating the opportunity to continue in the final design, and if so, with what constraints as well as with the aim of evaluating the need for a subsequent excavation «integral». What would anticipate cognition of two fundamental aspects: 1) verification of feasibility of the work;
2) need to find additional and adequate resources, even drawing on different sources of financing, to ensure the execution of the excavation as conservation and integral», «use of archaeological finds of exceptional importance. It appears clear how difficult that a contractor may be able to have economic resources such as to investigate fully and completely (within the meaning intended by the archaeological Superintendence) areas affected by the various public works contracts covered by the three-year program, the more that such investigations would constitute real autonomous interventions, which-in terms of time , costs, outcomes and even evaluation of performance of the work originally intended-it would be no less from parental discretion and the associated responsibility, placed in Chief at the administration. This last consideration, among other things, also has an impact on the role of the person responsible for the procedure, meaning they can appeal partially emptying the regulations (articles 18, 19 and 36 of the Decree of the President of the Republic No. 554/1999), which lay at the expense of the contractor all those requirements related to the design which could reduce contingencies during construction, and they find their own limit in this case dealt based on the protection of archaeological heritage. In fact, the only body responsible for identifying, with scientific method, goods to be protected as well as the determination of its rules-cartels and tracking techniques in the conservation-remains exclusively the competent archaeological Superintendency. This means that the execution of archaeological investigations, if placed solely on the initiative by the head of the proceedings would be conducted by a contractor appointed by the subject without the necessary legitimacy for the knowledge and use of correct methods of excavation, surveying and cataloging, and-especially-in order to evaluate the importance of the finds are for collective and more appropriate type of intervention to ensure their enjoyment or at the very least, to document their existence. Paradoxically, such activity-although inspired by the will to reduce unexpected events during construction and the consequent foreseeable burdens--might configure itself a higher cost, materialised in an activity whose fruits are uncertain and therefore lacking a concrete point, both for the purposes of the timely conduct of the contract, both for the protection of the archaeological heritage. Anticipating archaeological exploration by the competent Superintendent is so desirable, but it must also be observed as in many cases its investigations are willing because he can't be excluded-a priori-the presence of ancient remains in the area affected by the new thread and that often the structures unearthed such importance not to force a rethinking of the whole project; Indeed-once the graphic and photographic surveys, documenting the activity and achievements-the process can also end with covering how hollowed out (especially when preservation is problematic) so as to avoid degradation. If so, continue to have a value the claim that "the best Museum is the land», as can be deduced from the papers of the restoration and international conventions (such as the Athens Charter, summarising the results of the work of the International Conference of 1931), nothing prevents that the organ responsible for the protection-noted the payment ' (and therefore of the extreme difficulty of making even the economic impossibility) to perform an archaeological survey «survey» extended to the whole area of new construction and grounds its appurtenances-express a favourable opinion, to the extent applicable, by making the execution of the works to design technical solutions not interfering with the archaeological subsoil (meaning by that deadline the layer of land, located at a certain depth, which can contain within itself the signs of ancient human activities), so as not to foreclose any future actions of excavation and documentation. Wanting to draw the first conclusions from what has been reported, must therefore be that where the contract done insists on an area subject to archaeological constraint, the subsequent suspension of work-ready following discoveries of significant interest-relates to a condition certainly unexpected, but it can't be defined-with equal certainty--unpredictable. If so, the contractor and the supervisory authority have not based their action, each to the extent of their respective competence, to make fully clear and precise conditions of feasibility of the intervention to be carried out, any further charges relating to disruptions in the implementation phase of the work may give rise to disputes of charges by the Court of Auditors, targeted at individuals who were responsible. So it was the case in which the presence of a constraint imposed by the archaeological project-a competent Superintendent-which occurs prior to the award of the contract and, often, prior to the preparation of the Executive project, whereby it is possible to operate all ratings of the case in order to avoid that unresolved issues you can translate into impediments at the time of performance of the work with the economic consequences and storms that have been shown. There are also cases where the area of the site of the work to be not imposed a specific archaeological constraint, or cases in which, in spite of the above constraint, it is not possible to perform in advance all essays are required, due to the presence of buildings to be demolished as part of the contract to be assigned. These are the situations in which the problem of archaeological finds is fully manifest only during construction and during which needs to be addressed, then the interruption of activities ' yard to allow completion of the appropriate investigations under the scientific direction of the archaeological Superintendence. If the occurrence of such a case is obviously down any chance of action in terms of prevention, awareness of the real risk of a higher charges-that every temporal extension of the contract item is itself '-makes it even more necessary that the contractor and the supervisory authority adopt behaviors and appropriate measures to limit the extent of any damage. As regards the contracting administration, can't even be excluded in particular cases-withdrawal from the contract pursuant to art. 122 of the Decree of the President of the Republic No. 554/1999, should a cancellation appropriate following a weighted assessment of the factual circumstances. In the generality of cases, however, if the suspension of work, must remember the importance of the provisions contained in art. 133, paragraphs 4 and 5 of the Decree of the President of the Republic No. 554/1999, whose strict observance by the construction manager is definitely useful to avoid conflicting descriptions about the consistency of the existing workforce and media work in the pipeline at the time of suspension and throughout the protraction of the same, without prejudice to the need to be given the necessary provisions in order to contain machinery and manpower to a minimum. Also, it's appropriate that in the course of execution of archaeological investigations carried out under the scientific direction of the competent Superintendent, the Director of works is kept in close contact with the representatives of the supervisory authority, to know in real time the assessments of the importance of the finds brought to light and the modalities to ensure their conservation in situ, in order to foresee the possible repercussions on the work contracted and anticipate-as much as possible-the study of changes that may be necessary , reducing drafting a possible variant in the works. Regarding possible initiatives carried out by the body responsible for the protection of cultural heritage, there is no doubt that the particular area of responsibility leads to focus mainly on possible findings, with the obvious aim to ensure their knowledge and-if possible-the fruition. This however does not mean that they should be kept in mind also the functions of the contracting authority, to ensure the timeliness and economy of each procedure of execution of public works. Concretely, the awareness of another's responsibility cannot but result in times of carrying out activities of competence that they are always content to the extent strictly necessary to the expression of its assessments, having to also stress that any conduct characterized by slowness or inertia, and can lead to higher charges, mean 1 ' imputabilita ' the damage to State revenues, by the judiciary accountant, against all those who-for whatever reason-it is considered to be architects. Also in this regard the Ministry of BB. and the AA. CC. wished to underline its constant attention, giving knowledge of internal (circular DGBA recently issued decision n. 9786 of June 10, 2003), finalized just the simplification of administrative procedures and intended to increase the empowerment of offices, with a view to reducing that time making decisions that may involve notes consequences in terms of higher charges. Finally, still need to do some further thoughts on activities that normally are followed by the interruption of the works connected to the discovery of archaeological remains. Firstly, it should be noted that the archaeological excavations placed suspended are frequently carried out with the system of lists in economics and recourse to the workforce in the same company as the contractor, subject to availability at the direct assignment of related work. Recourse to this method of execution is justified by the urgency and opportunity to employ a workforce already present on site, to be placed under the orders of the scientific direction of the Superintendent. Although the total amount of such works in economics may be poorly significant compared to that contract, there is no doubt that the use of such circumstance the contractor obtains a reliance-on-removing themselves, for the above reasons of correctness, in any insolvency proceedings-and take a profit. Secondly, can occur with similar occurrence that the findings of archaeological excavation is necessary to make changes to the approved design, foreseeing an increase of work done, agreeing any new prices with the successful bidder and perfecting the contractual relationship by subscribing to a specific act of submission or additional instrument to the contract itself. Also in this case the contractor draws a useful major work entrusted to the recruitment of such claims undoubtedly charges to a lesser extent, in view of the fact that-in addition to not bear the costs of a new run-certainly gets the savings associated with use of the site already exists. It is also common for the enterprise register reserves as a result of the suspension of work, lamenting the damage suffered in terms of management and listing additional charges incurred for extended overhead, machinery and labour, non-useful, etc., determinandoli-in deference to a practice-using deductive arithmetic. For example, for estimation of bearing expenses incurred and in respect of which the refreshment, is often operated on the comparison between the actual daily production and what is defined as the theoretical daily production, taking as sole reference for the latter the original contractual conditions and its cronoprogramm, but without considering the economic or temporal changes governing the contract introduced at the request of the enterprise or that turn out to be improved for it anyway. On the basis of the above considerations, there seems no point invoking the provisions of articles 24 and 25 of the Italian Ministerial Decree LL.PP. # 145/2000 (regulation on the General conditions of contract for public works), concerning admissibility of the suspension and method of calculation of the damage possibly arising, so that, when assessing of admissibility and validity of reservations entered by the company on the company books, is a clear and present need to perform the following checks: 1) existence of the prerequisites to achieve recognition of the damage caused by suspension of work in accordance with art. 24 D.M. LL.PP. # 145/2000;
2) conformity of quantification of damages made by the contractor, ascertained by reference to the criteria set out in art. 25, paragraph 2, point a), b), c), d), and paragraph 3;
3) reconsideration of the amounts calculated as overheads, depreciation and profit remuneration, bearing injury unnecessarily paid if in the same period the enterprise has obtained additional loans and profit. In a nutshell, in arguing the counterclaims about complaints of the enterprise, there's no limit to the analysis only items listed in the inscriptions of acts, having instead appreciate the right fit all circumstances that occurred during the run time of the contract, in order to avoid the payment of sums in excess of the actual damages suffered by the company with care. From the foregoing considerations it follows that: 1) in order to ensure both compliance with timeliness and economy in the procurement process, both the exercise of every necessary action of protection in the event of archaeological finds, it appears useful to the contractors to evaluate the opportunity to involve the competent body responsible for the protection of the preliminary design stage, studying-in agreement with it-the possible modalities of implementation;
2) in the event that the project of an artwork insistent on area subject to Supervision may be submitted to the competent archaeological constraint only on the occasion of the Conference of contracting services, the Administration is obliged to make it clear in every detail the project presented, so as to enable the supervisory authority in the expression of an opinion, be it fully support or conditioned to conduct further investigations. The same supervisory authority, on its behalf, he shall at that meeting indicate just as clearly (even and especially in order to establish presumptive time and costs) which are the conditions to be fulfilled in order to initiate the work programmed, so assuming that there are sufficient resources to carry out excavations under the scientific direction of the Superintendent, who opposed condition in which can realistically only ipotizzarsi non-interfering design solutions with the archaeological subsoil;
3) in the case of suspension of work connected to archaeological finds during construction, the real risk of a configuration of higher charges, resulting from the temporal extension of the contract imposes maximum synergy between the contractor and the supervisory authority in order to adopt behaviours and appropriate measures, taking into account both the need to not just be prejudicial to the finds present in the subsoil and the need to limit the extent of any damage that the custodial parent can suffer.
4) where the suspension of the work has been followed by the occurrence of a dispute with the contractor, as well as highlight the importance of the correct application of the provisions contained in art. 133, paragraphs 4 and 5 of the Decree of the President of the Republic No. 554/1999, and in articles 24 and 25 of the Italian Ministerial Decree LL.PP. # 145/2000, should narrow down the examination of complaints recorded on the register of accounting and the resulting assessment can't regardless of knowledge of all the facts that occurred during the execution of the contract, including those-not named among the reserves--which are objectively likely to imply a reduction of the damage alleged Rome, May 19, 2004 President: Garri