The NATIONAL ANTI-CORRUPTION authorities 1. Foreword the Prefecture of Rome reported to this authority certain criticality encountered in relation to tenders issued for the awarding of private security service. Such criticality relate, in particular: the precise object of the contract (IE. the distinction between private security service and security and custody services);
the correct identification of the requirements for participation to be laid down in the contract notice;
the determination of the formula to find the most effective and economically to cases where it attributes a score so far limited to the evaluation of the technical proposal (i.e. equal to 20 points) than the one attributed to the financial offer (i.e. equal to 80);
to excessive markdowns brought by economic operators in the race, which could be related to irregularities in compliance with the obligations arising from the application of the NATIONAL COLLECTIVE LABOUR AGREEMENT of category and application of hourly rates are not in line with the tables on the average cost of work processed by the Ministry of labour and social policies for this sector;
the method of implementation of the c.d. "change contract", with particular reference to the application, by the new contractor, hourly rates are lower than the personnel of the company «outgoing». Given the importance of the issue and the involvement of numerous industry interests, the Authority considered it appropriate to adopt this document the results of the work of special technical meeting and public consultation initiated in compliance with the regulations of ' regulatory impact analysis Discipline (AIR) and verifying the regulatory impact (VIR) "(published in the Official Journal No. 278 of November 27, 2013) in order to gain additional reviews or critical aspects to be studied. It points out, first, that, for the assignment of such services, contractors must use the call-type, the authority has drawn up, following the consultation concluded on November 20, 2014, with reference to procurement of services and supplies. The banishment-type, which regulates submission by open with the most economically advantageous policy, reports the mandatory clauses of exclusion identified pursuant to art. 46, co. 1, of the code, and contains the main rules for the management of the tendering procedure, such as those relating to administrative records to produce, participation requirements, tools to reward the quality of tenders, verification of anomaly. 2. regulatory framework for private security activity is regulated by multiple sources of law and regulations. Among these, the main ones are represented by r.d. June 18, 1931 n. 773 public safety laws establishing "consolidated" and May 6, 1940, 635 s and r.d. "# approval of the regulations for the implementation of the consolidated June 18, 1931-IX, n. 773, laws of public security" and s. Must be supplied, also, m.d. October 1, 2010 # 269 laying down minimum organizational design characteristics and Discipline "of the minimum quality of institutes and services provided for in articles 257 and 256-bis-bis of the consolidated law enforcement public safety laws, as well as job requirements and technical ability required for the management of these institutes and to carry out organizational assignments under the same institutes» and d.m. of June 4, 2014 n. 115 «regulation on discipline of the characteristics and requirements for the performance of the tasks of independent certification of quality and conformity of institutes of private surveillance, authorised under article 134 of the consolidated text of the laws of public security and the services offered by them. Defining the terms of accreditation of independent certification». Among other legal sources involved in the matter, must also indicate the following: d.l. February 8, 2007, # 8, bearing "urgent measures for the prevention and repression of violence connected to football competitions» converted, with amendments, by law April 4, 2007, no. 41; Ministerial Decree of August 8, 2007 on the subject of «organization and service of "steward" in sports ';
d.l. July 27, 2005 n. 144 laying down urgent measures for combating international terrorism «», convertito con modificazioni dalla l. July 31, 2005, n. 155; d.m. September 15, 2009, n. 154 on the subject of the regulation laying down rules for the assignment of subsidiary under security services of ports, railway stations and its means of transport and depots, railways stations and related vehicles and depots, as well as in the field of urban transport lines, for whose completion is not required the exercise of public powers, adopted pursuant to article 18 , paragraph 2, of Decree-Law No July 27, 2005. 144, converted, with amendments, by law No 155 July 31, 2005 ';
l. July 15, 2009, # 94 establishing a "public safety provisions;
d.m. October 6, 2009 incorporating «determination of requirements for entry on the list of prefectural control personnel entertainment activities and entertainment in places open to the public or in public establishments, the procedure for the selection and training of staff, application areas and how to use it, from paragraphs 7 to 13 of article 3 of the Act July 15, 2009 , # 94 ';
l. January 16, 2003 # 3 bearing on institutional provisions concerning public administration ';
d.m. December 28, 2012 # 269 on the subject of «regulation on the use of security guards aboard merchant vessels flying the Italian flag, which pass at-risk piracy in international waters. " For the purposes of this document, among the sources mentioned above, it seems appropriate to recall first the R.D. June 18, 1931 n. 773 (Tulps) and R.D. May 6, 1940, n. 635 (hereinafter the regulation). In particular, the Tulps discipline, in title IV, the activity of private security, providing for two different ways of carrying out the same: that provided by art. 133, that is the situation where the supervision of private property is exercised directly by the owner of the goods (entities public, corporate names, private individuals) through the use of special guards employs competent and appointed by the Prefect; a second hypothesis envisaged by art. 134, consisting in the performance of supervisory activities, subject to authorisation by the prefect private legal entities or individual persons who employ their employees, professional and entrepreneurial form, recognized as security guards, at the service of property whether movable or immovable. In particular, article. 133 Tulps provides that ' public authorities, other bodies governed by collectives and individuals can allocate special guards the supervision or custody of their securities or real estate property. They can also, with the authorisation of the prefect, associate for the appointment of such guards for the supervision or custody of property took place '. The art. 134 Tulps has, instead, that "without a license from the prefect and is forbidden to institutions or individuals to lend works of surveillance or custody of property whether movable or immovable and perform investigations or searches or to gather information on behalf of individuals. Without prejudice to the provisions of art. 11, the license cannot be allowed to persons who do not have Italian citizenship or of a Member State of the European Union or are unable to undertake or have suffered punishment for crime not manslaughter. Citizens of EU Member States may obtain a license to provide monitoring or custody of property whether movable or immovable, under the same conditions as Italian citizens. The implementing regulation shall identify the other parties, including the Managing Director, or any person who carries powers of management, administration or even partial management of the Institute or its joints, in respect of which ensured the absence of convictions for manslaughter not murder and other requirements set out in article 11 of this consolidating Act, as well as by article 10 of the law May 31, 1965, # 575. The license cannot be allowed for importing an exercise of public functions or an impairment of individual freedom ". The license for the exercise of supervisory activities is issued by the Prefect in the presence of particular conditions and requirements stated in arts. 134, 136, 138 of Tulps. The method of submission of the application for a licence referred to in art. the 134 Tulps is regulated by art. 257 reg., which States (among other things) that such proceedings must indicate the subject that requires organizational and ownership structure, the composition of the latter, the name of the territory, even in provinces or regions, in which the Institute intends to carry out its activities, the services in respect of which the authorization, tools and technologies that are used. The question is presented on an organizational and technical-operational project of the Institute, as well as the documentation proving the possession of necessary technical skills, own and of those responsible to task forces of the Institute and the availability of financial resources, technical and logistics necessary for the activities to be carried out and its characteristics, in accordance with the provisions in force. The following art. 257-bis discipline, Furthermore, the method of presentation of the application for the licence referred to in art. the 134 Tulps for investigative activities, research and collection of information on behalf of individuals. Il comma 4 dell'art. 257 reg. demanda a decree of the Minister of the Interior the definition of minimum requirements which should conform the organizational design and quality requirements of the institutes and services, as well as job requirements and technical ability required for the direction of the Institute and for carrying out organizational tasks. This provision was complied with the aforementioned regulatory d.m. October 1, 2010, n. 269, with which they were covered, in particular, the following aspects: characteristics and organizational requirements and professional private security institutes;
requirements and quality of service;
characteristics and organizational requirements and professional private investigation institutions and commercial information;
private investigation services and quality of commercial information;
Professional and training requirements of guards sworn details;
updating of the necessary technical and professional. The Ministerial Decree 269/2010 will identify, in Annex D, section III, para. 3, the types of services delegated to institutions ' private security guards and through the employees with the use of means placed at their disposal, "listing them as follows: 1. fixed surveillance;
2. intermittent supervision;
3. supervision with video surveillance and alarm systems;
4. action on alarm;
5. fixed surveillance duress;
6. fixed surveillance through the use of canine units;
7. article surveillance service;
8. safekeeping in the vault;
9. transport service and stock values and services on automatic equipment, ATM safes;
10. escort service transported goods by means other than those intended for the transport of valuables, property of the same company or third parties;
11. security services and complementary security provided for by specific laws or regulations (Ministerial Decree 85/1999, d.m. 154/2009, etc.). The same d.m., always in Annex D, section. III, para. 3. b. 1 identifies those cases where, for special needs, the security service must be carried out by the security guards. In particular you have to respect that shall be construed as sensitive targets and, as such, under the supervision of the security guards, if there are direct law enforcement, the following assets: public or private companies in the energy sector (whether it is energy production facilities of distribution centres in urban areas) and of water supply (including water treatment plants or distribution in urban water supply);
public or private companies in the telecommunications sector (in particular central liaison, marshalling and managing telephone networks, both fixed and mobile) and locations of national broadcasting;
refineries, centers the collection and processing of crude oils, fuel and lubricants with storage capacity greater than 100 tonnes. Shall be construed as special security sites and, as such, similarly entrusted the supervision of security guards, if there are direct law enforcement: sites where people who perform tasks of particular delicacy for the public interest and for which guaranteed the safety and the operation (such as companies or hospitals and/or health care);
sites containing sensitive or databases to which access is restricted only to authorized individuals (such as public buildings fitted with data centers and/or strong attendance, regions, provinces, Inps, etc.);
sites where access is subject to control with x-ray machines or metal detectors or thumbprint (e.g. courts and judicial offices in General);
sites where there is stock of significant values or valuable goods removed (such as museums, art galleries and exhibitions if they contain works of high artistic value and cheap). To be considered, moreover, that article 256-bis of the rules specifies in paragraph 2 that "fall (...) supplementary security services, to be carried out by means of special guards swear, except where the law provides otherwise or provide law enforcement, supervisory activities regarding: a) the security at airports, ports, train stations, railways stations and other public places or open to the public, specifically indicated by special rules, in addition to that provided by the public force;
b) custody, shipping and stock up on weapons, explosives and other hazardous material, in the cases provided for by the provisions in force or by the prescriptions of authority, without prejudice to the provisions in force to ensure the safety of the housing, transport and escort;
c) the custody, transportation and escort of cash or other assets or securities; and supervision in places where there is handling significant sums or other relevant securities or assets belonging to third parties;
d) mobile army supervision and interventions about alarms, prejudice to the powers of the officers and agents of public security;
and) supervision at energy infrastructure or telecommunications, high-tech products, to those at risk of environmental impact, and any other infrastructure that can constitute, also potential, a sensitive target for security or public safety or environmental protection. " The next paragraph 3 stipulates that "is also in supplementary supervision security services at courts and other public buildings, military installations, industrial or commercial centers, and other similar infrastructure, special safety requirements dictate that when the same services are carried out by guards sworn details». It is necessary, and consider that it is entrusted to the guards the custody of real property and chattels contained in them during night time or closed to the public. With the provisions mentioned above were, therefore, define the types of services delegated to private security institutes (annex D, sez. III, para. 3. a, m.d. 269/2010) and were specifically identified cases where, for special needs, the service must be carried out by private security guards (article 256-bis reg. and All. D, sez. III, para. 3. b. 1, d.m. 269/2010). The above Act concerns for the purposes of the definition of one of the problems reported by the Prefecture of Rome and represented by those participating in the discussion table, namely the expectations on the part of contractors, Concierge services or global service instead of the private security service, even in cases where the industry would impose discipline on the use of the latter service. It is clear that this practice is to censor as being contrary to the industry that requires discipline in the cases indicated by art. 256-bis reg. and d.m. 269/2010 the need to resort to private security firms, given the need to perform specific services for the protection of specific security needs. Security guards, in fact, as shown above, must possess specific license prefect. Also, while the private security is characterized by the pursuit of direct powers of intervention for protection of property, the doorman or security activities does not imply an obligation of active defense of property, but a normal protection of private property and operating companies or complex functions (eg visitor registration, control and inspection of vehicle flow adjustment to parking entrances; intrusion alarm system monitoring and the obligation, in the event of an alarm, immediately notify the technical service and to persons identified by the owner or by the Administration for the necessary assistance; etc.). Societies of caretaking, global service and integrated services, while members of the Chamber of Commerce, instead, can play only the activities outlined in their objects, as operating without licenses and inspections that are subject of private security institutes. The activity of caretaking, following the deletion of art. 62 Tulps and articles. 111, 113, 114 reg., l. November 24, 2000, # 340 (provision for the delegificazione of rules and for the simplification of administrative procedures), is no longer subject to authorisation and it is therefore liberalized (Prefect's authorization remains the use of uniform under article. 230 reg.). It seems obvious that the distinguishing features of the private security firms by trust services make it the first non-comparable and not replaceable by seconds. Moreover, in the light of the expressed provisions of art. 256-bis Reg and par. 3. b. 1 of Annex D of d.m. 269/2010 which, as shown above, require as mandatory recourse to security guards for supervision of c.d. sensitive targets, must be excluded the possibility to outsource such services to agencies of caretaking. The question it seems useful to refer to the Handbook Interior Ministry operating (operational provisions for the implementation of the Ministerial Decree No 269 1.12.2010) annex to the circular 557/PAS/U/004935/10089. D (1) Reg, in which it is stated that with the d.m. 269/2010 is "defined the thorny issue of the difference between private security and doorman services» back, evidently, the first elimination in the cases that are not expressly provided for by the standard in question. The line chosen by the Decree, however, appears consistent with the shared conviction of the case-law that the mere distinction between passive surveillance was already-that can be performed by different staff security guards--and "... active surveillance tasks-which may involve the use of weapons, prevention and immediate suppression of unlawful acts in competition with law enforcement, covered by the scheme of control and authorization provided for by articles 133 et seq of Tulps ...» in considering such tasks as similar to those carried out ' by members of the police force and, for that reason, from the doorman activities which is characterized instead to be intended to ensure the orderly use of the property by users without being in any way in relief (if not entirely mediated and indirect) purposes of prevention and safety "(cf. Cass. Criminal, sez. I, 12.04.2006, n. 14258; Cons. State, sez. Vi, 14.02.2007, n. 654; Tar, section III, 25.5.2010, # 1674). In the light of the foregoing, the mingling of private security service and trust services (Concierge and reception), does not conform to the regulation concerned, indeed the diversity of benefits which comprise these services, does not consider them replaceable. Therefore it is important to recall the contractors at a careful and scrupulous implementation of the provisions above, and in particular of d. m. 269/2010, which, as we have seen, identified in Annex D, section III, para. 3 and 3 b. 1, the types of services delegated to private security institutes and the cases in which, for special needs, the security service must be carried out by the security guards, thus excluding the possibility to outsource such services to companies of caretaking. 3. Subdivision into lots Some technical table participants and consultation have highlighted how the contractors, in addition to not apply for prefectural authorisation normatively in some cases scheduled for private security service, often end up to aggregate heterogeneous activities into a single procedure. This aggregation could lead to the failure to distinguish between services in respect of which it is expected to be authorized and those for which the law does not impose special requirements of fitness. If they are not required to race these requirements you are likely received offers from persons not bound neither to the possession of the licence mentioned in art. 134 Tulps nor respect for contracts, with obvious risks to the development of a proper tendering procedure. Notwithstanding that the contractor has the obligation to indicate in the contract notice that the private security service cannot be carried out without the necessary license above, it must then make sure that at the time of conclusion of the contract of assignment of the service de quo subject contractor possesses such authorization and keep throughout the execution of the contract. In essence, there is a risk that the successful tender, although abstractly more convenient, is not such as to ensure the quality and proper implementation of the private security service as the successful bidder, if it is devoid of a licence referred to in art. 134 Tulps can't carry out active surveillance in heritage protection and the public, such as robbery, not having authorized it personnel and have the necessary professional qualifications and equipment. This being so, in order to generate cost savings, it might be convenient for the contractor to a single race that includes more services such as armed security, storage and caretaking, foreseeing but separate lots for each service. If so, it remains a requirement for the contractor to indicate in detail in the tender documents the individual services required, specifying in respect of each of them the requirements for participation in the race and those required for execution, including permissions. In addition, the attention of the national legislature for subdivision into lots, aimed at promoting the participation of small and medium-sized enterprises, in the race setup the contractors must evaluate the opportunity to split custody of services in more functional lots, characterized by homogeneous activity to nature and requirements, at least one of which should relate to the private security service. For services to be carried out at large complexes, like airports or stations, or shows/events, the Division can also affect the geographical extent. Remember, however, that in accordance with art. 2, co. 1-bis of the code, failure to Division into lots must be clearly substantiated in the tender documents. 4. excessive Markdowns the contributors to the discussion table and consultation complaining that in tendering procedures for the awarding of private security service are often not profitable offers and/or that do not guarantee the actual quality. The phenomenon, as reported, it can be caused by several factors: (i) participation of business agencies pursuant to art. 115 Tulps, which identify the institutions that outsource services, proposing tariffs that do not cover even the operating costs; (ii) participation by individuals who are not provided with the licence referred to in art. 134 Tulps and therefore do not bear the costs incurred by lenders authorized surveillance; (iii) excessive competition on price, determined by the expectations according to the criterion of the lowest price, which could be eliminated by choosing as award criterion that the economically most advantageous tender (hereinafter OEPV). In relation to the reported practice of inviting to procedures for the award private security service institutions not under art. Tupls 134, but intermediary companies, business agencies under art. 115 Tulps, who subsequently identify the providers of that service, it can be seen that the same is in essence a delegation of publishing functions in contrast to the sector regulations. Difatti l'art, 33, paragraph 1, legislative decree 163/2006 enables contractors and contracting entities may purchase works, supplies and services through the use of central purchasing bodies, but in this category not covered by the above agencies (cf., Avcp, 6.3.2013 deliberation # 7). In other words, except for the cases prescribed by legislation, Legislative Decree No 163/2006 ‹ ‹ forbids anyone other than by the authorities concerned can initiate and manage the process to the award of the public contract. For the conclusion of such an agreement is necessary for the entire time they're journalism antecedent, aimed at choosing the contractor, is carried out by the contracting authority that will be part of the same contract › › (Avcp, opinion on legislation, July 30, 2009). With reference to the participation requirements, it is observed that the contractor must provide for requirements that are consistent with industry standards, to ensure effective competition in the market of private security service. At the point it reminds us that "without a license from the prefect and is forbidden to institutions or individuals to lend works of surveillance or custody of property whether movable or immovable and perform investigations or searches or to gather information on behalf of individuals ' (article 134 Tulps). This authorisation is issued by the Prefect at the request of the person concerned, after verification of the existence of certain assumptions and requirements, expressly provided for and governed by arts. 11, 134, 136 and 138 Tulps and articles. 256-bis and 257 ff. of the implementing regulation. The same is, therefore, a measure to authorize intuitu personae, which, for the purposes of participation in procedures for the award in the General category of professional qualifications requirements under art. 39 Legislative Decree 163/2006 (cf. ANAC, litigation opinion, April 8, 2015 # 48; and October 14, 2014 # 64). Consequently, according to the most recent guidance of authority, ownership of the license provided for and regulated by art. 134 Tulps-refers to one or more province-is a requirement for participation in public tenders for the award of private security services, due under the General category of professional qualifications requirements under art. 39 Legislative Decree 163/2006. Runs, however, obliged to point out that in accordance with the principles of reasonableness, non-discrimination and favor partecipationis, this requirement for admission must be satisfied even if the contestant has already licensed the prefect ex art. the 134 Tulps for a given province and have filed for the extension of the authorisation in another province--which the relevant territory for the fulfillment of the expected service in the race as long as its license (extension) received before conclusion of the contract. The point goes, indeed, considering that by virtue of article. 257-ter, paragraph 5, ' for the purposes of license extension to other services or to other provinces, the Cardholder shall notify the prefect which issued the license media, technology and other resources it intends to employ, as well as new or new offices if required and any other integration acts and documents referred to in article 257 – paragraphs 2 and 3. The related services commence after 90 days from the notification, the period during which the prefect can ask for clarifications and additions to the technical-organizational project and have the ban of the activity if it cannot be realised, i.e. the conditions for suspension or revocation of the license, referred to in article 257-c». That provision provides that the license extension to other services or to other provinces it is subject to a notification of the person concerned to the competent prefecture, accompanied by the necessary documentation. The extension of supervisory activities authorized by the measure of the prefecture in other provinces can be started only after the time limit of 90 days of the submission of that instance, deadline by which the Prefect can ask for clarifications and additions to the technical-organizational project produced and have the ban of the activity, if it cannot be approved. Such request pursuant to art. 257-ter, paragraph 5, and is therefore a ligamentum not a prius than obtaining permission pursuant to art. 134 Tulps. Consequently the contestant in possession of that license and I've filed for extension under art. 257-ter, co. 5, r.d. 773/1940, can take part in the race if he shows that he has already requested the extension by the deadline for submitting the application form (cf. Cons. State, sez. V, March 2, 2011, # 1315 that ‹ ‹ excluding the appellant, who had also submitted timely request for territorial extension of authorisation must not therefore illegitimate and deserves to prefectural canceling, resulting in the company's readmission to the procedure for the examination of the offer › › and sez. Vi, May 2, 2012 # 2515). Therefore, while the possession of license ex art. 134 Tulps constitutes a condition for participation in contracts for private security services, the achievement of territorial extension or other activities, pursuant to art. 257, co. 5 above, constitutes a condition of the conclusion of the contract, after the award. With reference to the award criteria it is noted that the choice of the same and better art. 81 Legislative Decree 163/2006 solely to the contractor, which must state or a lower price or the OEPV (1) such an option, however, must be anchored to the parameter indicated by the same art. 81, paragraph 2, Legislative Decree n. 163/2006, that is, the characteristics of the object of the contract. Consequently, the same can not be dictated solely by the need to avoid excessive markdowns and any use of the OEPV has to be justified on the basis of objective elements of the contract and provide criteria for assessing the technical offer suitable to bring out the quality differences among the submissions. In essence, the OEPV is preferable when the technical design buy its value under the offer (cf. Avcp, determination November 24, 2011, # 7). Conversely, when the product or service is highly standardized due to its characteristics or for stringent regulation, it would be preferable to adopt the criterion of the lowest price. In this case, to prevent opportunistic behaviour is being offered that during construction, the contractor should establish a complete and careful project and verify that the tenders submitted correspond to those required by the tender documents and the framework for the sector. Note, however, that the award to the lower price is characterized by greater simplicity in the process of evaluating tenders. In view of the above, in the event that the contractor, considers that the conditions for the application of the criterion of the lowest price must define punctually in the tender documents the technical conditions for the performance of the service, with the result that the only difference in the bids submitted by competitors will be given by the price of delivery of services as determined by the contractor. Such conditions may include, for example: the type of supervision required (fixed, ronda, etc.);
the number of staff employed in the various services, with particular reference to staff in possession of Prefectural authorisation;
the number of patrols/cars that should be available for operations and emergencies;
the number and characteristics of radio frequencies for connections to the police stations;
the number and location of cameras required for video surveillance;
experience required to staff with respect to the services to be performed;
the experience in procedures and operating methods of intervention. On the other hand, if the contractor considers that the service can be differentiated from a qualitative point of view will award the contract using the OEPV. In this case it is possible to foresee technical assessment criteria that follow the quality of the project and that no privilege, instead, issues related to enterprise size. Among the aspects that can reward quality include training for staff, the Organization of the service, the technical design, also in relation to the equipment and technological equipment, emergency response mode through structures/equipment, the supply of services in addition to those required in the contract. Should not be included in the bid evaluation criteria within the framework of standard elements, whose possession over a certain amount default ex ante by the contractor, on the one hand, does not entail a clear benefit to the quality of service provided, and, on the other hand, may have the effect of favouring larger operators (eg. criteria related to the number of patrols or staff holding prefectural authorization in addition to the need to ensure the service). As the Avcp has got to highlight more occasions (most recently, bando-type n. 1/2014), using the OEPV allows you to pay more or less attention to the quality of the service provided (i.e. higher or lower value with the item price) by adopting some measures permitted by law. We highlight in particular: the possibility to limit the weight of the component of the price;
the fixing of a coefficient X (0.85 or 0.9) in the calibration of bi-linear formula that Annex d of the regulation;
the fixing of a threshold to the technical score, so select only offers that meet certain quality standards;
a chance to riparametrazione technical scores, which reward offers of higher quality (see determining Avcp of November 24, 2011, # 7). Please note that the riparametrazione fulfils the need to ensure an invariable ratio between the price factor and the factor quality so that, in relation to both components, the best offer gets the highest score, resulting in the restructuring of other offerings (cf. Cons. State, section V, June 12, 2009, n. 3716). It stresses, therefore, the importance of this operation, as well as more widely noted in the aforementioned determination # 7/2011, in which the reader is referred for further discussion of the topic under consideration. Regardless of the award criterion chosen by the contractor, however, requires that the tender documents break down the overall amount among features, this is for the purposes of the formulation of the bids are for the correct measurement of participation requirements related to corporate revenue that, according to art. 41.2, of the code, must be suitably motivated in the tender documents, it is the illegality of the clause which prescribes. In order to prevent competition on price will translate into economic deals such as to compromise the quality of performance or working conditions and safety of the staff employed in the performance of the contract, it is also necessary that the contractors to do the verification of adequacy's second when placed in articles. 86 et seq of Legislative Decree n. 163/2006, assessing, in particular, if the price offered is appropriate for ensuring the compliance with all costs related to the service provided in the technical specifications, including labour costs, in order to which you will not be able to bid on the downside. In this regard it is recalled that justification is not permitted in relation to statutory minimum wage treatments prescribed by law or authorized by law (article 87, paragraph 3) (2) this means that the contractor must verify the consistency between the total allotment for the contract and hourly costs of the staff indicated in the race, making sure that they are in line with the minimum required by collective bargaining agreements. To this end, a useful benchmark is represented also by the Ministerial tables on the average cost of labor. At respect it should be noted, though, that they do not assume absolute parameter value and imperative, but play a suggestive, susceptible to displacement in relation to statistical evaluations and corporate analysis highlighting a particular organization can justify the sustainability of lower costs (in this sense, it is also the administrative jurisprudence see Cons. State, section V March 13, 2014 # 1176, Cons. State, section V, June 14, 2013, # 3314 and sez. IV, March 22, 2013, n. 1633; AVCP, preliminary opinion, October 20, 2011, # 189). The contractor also to verify the seriousness of the offer could also consider the profit percentage indicated by the entrant. Although according to some respondents, the latter could not be zero in view of for-profit pursued by economic operators, it is necessary to consider what administrative case-law it is possible to fix a hard quota of income below which the offer should be considered incongruous, since by definition have regarding the seriousness of the contract proposal given that even a seemingly modest profit can involve an important advantage (cf. Cons. State, section VI, January 16, 2009, # 215 and sez. IV, July 23, 2012, # 4206). 5. Return the contract and labor tax for the purposes of the general framework of the issue under consideration, you invoke the art. 69 of the code of contracts-in recepimento art. 26 of Directive 2004/18/EC and art. 38 of Directive 2004/17/EC-under which the contractors may require special conditions for carrying out of the contract, provided that these are compatible with Community law and, in particular, with the principles of equal treatment, non-discrimination, transparency, proportionality, and as long as they are laid down in the contract notice or in the invitation if procedures without notice or in the specifications. In that regard, that provision States, in paragraph 2, that those conditions may follow, in particular, in social or environmental requirements and adds, in paragraph 3, that the contractor that provides such particular conditions has the power to send it to the authority, in order to obtain a ruling on the compatibility with Community law. Community rules and discipline, therefore, expressly stipulate that transposition should be conditions of implementation, with this clarifying, explicitly, as he repeatedly established authority, that these are conditions that produce effects in the execution phase of the contract and, implicitly, that they should have no bearing on the process of participation in the race. In addition, the application of the provisions relating to a particular condition of provision of service, must not reach undue interference with the criteria for assessing the best deal, since the latter must be assessed on the basis of their content quality, directly relevant to the subject matter of the contract. The contractors must therefore undertake a careful assessment of the conformity of special conditions for carrying out inquiries to the principles of the EU Treaty relating to the free movement of goods and freedom to provide services, in order to avoid any discrimination, direct or indirect, between bidders, and to avoid the risk that they may have adverse effects on the real and effective competition between firms. Precisely in order to facilitate such evaluation, the already called art. 69, paragraph 3, of the code of public contracts provided for the Faculty for contractors to request to the authority a pronouncement about the clauses of the call for "special conditions of performance of the contract", in order to avoid that the provisions contained therein have an adverse effect on the conditions of competitive ' market ' in such a way as to discriminate or affect certain categories of entrepreneurs, determining that an invitation or announcement of incompatibility with Community law» (Cons. State, opinion February 6, 2006, # 355). You must then invoke the interpretative address constant of this authority, which States that in order to honor advertising obligations required by the standard, it is advisable for the contractor: a) include the social clause, as well as the technical specifications also in the invitation to tender and the tender regulations; b) give adequate and independent evidence, we brought this clause in a separate article entitled ' social clause ' or equivalent expression; c) carry an identical tenor clause in the contract; d) cure that traders competitors declare within the offer to accept the conditions of implementation. In fact, since those terms imply a partial derogation from the Community rules, reasons of opportunity to suggest a prediction expressed and easily identifiable in the same, using wording such as to highlight the specificity and dissemination (cf. ANAC, opinion on 6/2015 and 14/2015 AG legislation). Similar attention should be paid to economic operators competitors declare within the offer to accept special conditions for carrying out required by performance specifications. Among the conditions of performance of the contract include the cd. social clause, also called the absorption personnel working from the previous contractor. As stated by the Constitutional Court-pronunciation # 68 of March 3, 2011-the clause in question operates in the event of termination of the contract and the assumption of new contractors and responds to the need to ensure continuity of service and employment, in the case of discontinuity of the subcontractor. The Court points out that that provision is not only determined by collective bargaining and is recognized in the law, but it is also provided in specific State and regional legislation, recognizing that full legitimacy. In support of the legitimacy of the clause refers, in addition, both art. 41 of the Constitution, which admits no limits to freedom of economic initiative for social purposes, both art. 2 of the code of public contracts, making the principle of economy ' ' the criteria, provided by bando, inspired by social needs. " Generally speaking, it should be noted that settled case-law (Cons. State, section III, May 10, 2013, # 2533) this clause should not be understood as a requirement of previous contract workers, even total resorption where the contractor. is required to insert it in the discipline of competition for national collective bargaining arrangement, and therefore there are no absolute automatism in the application of the clause in the execution phase. In fact, "the administration can't be bound indefinitely to use a service with a number of persons employed variable only increasing, despite the technological evolution enables the creation of service with fewer, with corresponding savings in government spending" (ibid., case # 2533/2013). Conversely, the clause must be interpreted as meaning that the resorption is harmonised with the Organization of the business and technical and organizational needs replacing and manpower required in the new contract, so I don't give it a foreclosure. The provision, therefore, can only be inserted in case the new foster care has as its object the same service for which it ceased the contract, therefore it is necessary for the contractor to properly define the subject-matter of the contract according to an exact application of D.M. 269/2010, avoiding to qualify as private security service activities that are beyond or transforming the private security service the subject of the previous contract, an escrow service, in this case, again, you can't apply the reabsorption of personnel (cf. Avcp, opinions on the legislation, AG 19/2013, 39/2013 20/2013 and AG AG). According to the shared conviction of Avcp on point the obligation of obtaining workers from the previous custody can only be allowed after assessment of compatibility with the enterprise organization, in the dual sense that both the number of workers and their qualification shall be in tone with the business of the company awarded the contract and with the technical and organizational needs (Avcp, opinion on legislation, AG 44/2013). The social clause, in fact, cannot alter or force the contractor's assessment regarding the sizing of the undertaking and, accordingly, cannot impose an obligation for workers ' previous contract, resorption integral without due consideration of the changed conditions of the new contract, the social context and of the market or the business environment in which these workers are inserted. And in fact the law said that "the incoming contractor must primarily take the same employees who worked at the behest of the outgoing contractor, provided that their number and their qualifications are in tone with the business chosen by the incoming entrepreneur." Adding, moreover, that the social clause must be given a flexible reading living law and therefore, workers that have no place in the organization chart of the incoming contractor or are used for other services or are recipients of social welfare standards (Cons. State, 4th section, December 2, 2013, n. 5725; in subject cf. even Avcp, litigation, opinion No. 44/2010, Avcp, opinion on legislation, AG 41/2012). For the private security service, the national collective by category since February 1, 2013 introduced a binding contractual discipline on exchange contract, establishing its procedure (articles 24-27 national collective 2013-2015). Apart from any analysis on this framework, established "the principal order to maintain employment levels and to avoid, in relation to the employees, solution of continuity between the two contracts, here it is necessary to identify the correct application of the social clause in tender procedures for the awarding of private security service, in order to ensure full transparency in the procedure , circularity of information and create the conditions so that the contractor is in a position to assess the reliability of the verification of the anomaly. In particular the presence of specific obligations in the field of personal absorption resulting from national collective private security sector determines the need to provide that in the tender documents to be contained in a clear and expressed the social clause, which method of execution of the contract pursuant to art. 69, paragraphs 1 and 4, of the code of public contracts. It follows that, first, the contractor must make explicit the conditions of implementation in the tender documents and, on the other hand, economic operators must accept them, in case they will be winners. For example, the wording of that clause could read as follows: «in order to secure existing jobs, the provisions laid down in collective bargaining concerning personal reabsorption». In the tender documents, moreover, in the context of the data and information useful for the definition of the subject of the contract, the contractor shall provide for the designation of staff who currently performs the service, accompanied by an indication of the level, including any shots of seniority, and the remuneration paid to the employee. What as the forecast in para 1, art. 69, according to which special conditions shall be specified in the contract notice or in the invitation if procedures without notice or in the specifications, it is intended to safeguard the principle, inescapable, that the competitor is put in a position to know, prior to the submission of the offer, which assumes expenses with participation in the race (cf. Cons For Status. PL., August 6, 2013, # 19). Last but not least, the indication in the tender documents of the staff employed in the contract and its remuneration, constitutes an element for evaluating the reliability of supply, whose sustainability is calculated with reference to the number of outgoing staff. After the award, in the event of a takeover by another company in the same services already object of the previous contract, with reference to the outgoing and the Institute other subjects identified by the national collective agreement for 2013-2015 (OO.SS., incoming, and the Police Prefecture Institute), apply the rules provided for by art. 24-27 of the aforementioned national collective Failure to comply with the social clause, the same method of execution of the contract, will be evaluated by the contractor from time to time, in order to determine whether the contractor has been guilty of gross negligence or bad faith in performance of the contract.
Approved by the Council at its meeting of July 22, 2015 President: Canton Deposited at the Secretariat of the Council on July 30, 2015 Secretary: Esposito (1) this provision could be changed as a result of the implementation of the new community public procurement directives. For more details on this topic, please refer to the Act of reporting # 3, May 21, 2014, adopted by AVCP pursuant to art. 6, paragraph 7) (f) of Legislative Decree n. 163 guidelines April 12, 2006, n. 2014/24/EU public procurement n. 2014/25/EU on procurement of entities operating in the water, energy, transport and postal services sectors and n. 2014/23/EU on the award of concession contracts». (2) for a discussion of the problems concerning the labour costs in public procurement please refer to the Act of reporting # 2, of March 19, 2014, adopted by AVCP pursuant to art.
6, paragraph 7) (f) of legislative decree April 12, 2006, # 163 "provisions on labour costs in public procurement under art. 82, paragraph 3-bis, Legislative Decree of April 12, 2006 # 163 ".