The Council of the NATIONAL ANTI-CORRUPTION authorities 1. Glossary for the purposes of these Guidelines are intended to: a) "authority" means the national anti-corruption authority (A.N.AC.);
b) "code" Legislative Decree no April 12, 2006. 163 (code of public contracts for works, services and supplies in implementation of directives 2004/17/EC and 2004/18/EC);
c) "Regulation", the p.r.Decree October 5, 2010, n. 207 (regulation of execution of Legislative Decree n. 163 April 12, 2006, establishing a "code of public contracts for works, services and supplies in implementation of directives 2004/17/EC and 2004/18/EC ');
d) "public works concession", a contract for pecuniary interest concluded in writing, concerning the execution, which is the final design and execution — the final design, the final design and execution of public works or public utility, and work them structurally and directly connected, as well as their functional and economic management, which has 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;
e) "concession", the contract of the same type as a public service contract except for the fact that the consideration for the provision of services consists either solely in the right to exploit the service or in this right together with payment;
f) "public private partnership contracts," contracts for one or more services such as design, construction, operation or maintenance of public works or public utility, or the provision of a service, including in each case the full or partial private financing workload, even in different forms of such benefits, with risk allocation in accordance with the existing Community requirements and addresses;
g) "corporate finance" or "Corporate finance", the financing of activity of enterprise, registered in the financial statements of the same undertaking and secured by assets of the borrower of funds;
h) "project finance" or "Project finance", the financing of a project can generate, in stage management, cash flow insufficient to repay the debt contracted for its accomplishment and reward risk capital, which should occur in the award of a concession covering the use of resources is totally or partially paid by private persons is regulated in its procedural aspects of art. 153 of the code;
I) "project company or company vehicle (SPV-Special purpose Vehicle)", the joint stock company or limited liability, the Consortium, which also involves ensuring the legal and economic separation of the project from other activities of those involved in the project;
j) "cold Work", a work for which the private person that builds and runs it provides services directly to the public administration and derives its remuneration by payments made by the latter;
k) "hot Work", a work 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;
l) "lukewarm", opera can generate 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;
m) "risk of construction," risk in the construction of the plant exceeded the budgeted costs, the possibility of additional costs resulting from delay in delivery, non-compliance with specifications or construction requirements, as well as environmental and other risks that require payments in favor of third parties;
n) "demand risk", risk includes the possibility that demand for services is higher or lower than expected;
o) "risk of availability," the risk that includes the possibility of additional costs, such as maintenance and funding, and the payment of penalties because the volume or quality of services do not meet the standards specified in the contract;
p) "residual value and risk of obsolescence," the risks include the risk that the value of the asset is lower than expected at the end of the contract and the extent to which Governments have the option to acquire the property;
q) "operational risk", risk of non-recovery of investments or costs related to the management of works or services covered by the grant, including a risk on the demand side or on the supply side, or both;
r) "financial Balance", all the assumptions and conditions of affordability and financial sustainability of an investment project, namely the ability of the project to create value in the course of the grant, generating a level of profitability for the invested capital commensurate with the expectations of private investors and cash flows sufficient to guarantee repayment of funding and adequate profitability for shareholders;
s) "Financial Plan", document where are represented the prerequisites and conditions for economic equilibrium-investment and financial management for the duration of the concession. 2. introduction this determination contains guidelines on project finance or project finance (hereafter "PF"), which in general principles can be used for most contracts of public-private partnership ("Ppp"), of which the PF is an expression. According to the definition in Regulation (EU) No. 549/2013 of the European Parliament and of the Council of May 21, 2013 establishing a "European system of national and regional accounts in the European Union ' (cd. "SEC2010"), the Ppp «are long-term contracts concluded between two units, on the basis of which a unit buys or builds one or more activity, runs for a certain period and then transfer to a second unit. Such agreements are normally concluded between a private company and a Government Department but are not excluded other combinations: for example, a public company on the one hand and private nonprofit institution on the other. " The PF, instead, is to finance a project capable of generating, in stage management, cash flow insufficient to repay the debt contracted for its accomplishment and reward risk capital. It is, therefore, a structured finance methods used for some PPPs. The distinctions between PF and Ppp are therefore theoretically clear: the first relates to the financing of a work or a project, the second at ways of collaboration between the public and private sectors; However, the way it's structured code, which under art. 153 PF as a form of discipline the award of a grant alternative to that (for public initiative) under art. 143, available wherever contemplated resource use wholly or partly borne by "proposing subjects», the two institutes tend to overlap, risking to create confusion among economic actors. Transposition of 2014/23/EU of the European Parliament and of the Council of February 26, 2014 on the award of concession contracts (hereafter just "2014/23/EU directive"), which must take place by April 18, 2016, will be the opportunity to establish more clearly the relationship between Ppp, concessions and PF (in this regard, see also the available sub art. 1 , comma 1, lett. LL) of the Bill to transpose European directives, which locates between the guidance criteria that proceeding with rationalisation of public-private partnerships). The present guidelines are the procedures regulated by art. 153 of the code, entitled ' project finance ' but, as already pointed out, are given information that generally may apply for Ppp contracts and, by analogy, even to other institutions in your code, such as those governed by art. 175, strategic infrastructure. With this Act are, therefore, updated and consolidated into a single document determinations of authority # 1 of 2009, project finance guidelines after the entry into force of the third corrective, and n. 2 of 2010, issues relating to discipline governing enforcement of public works concession contract, which then are superseded by these guidelines. It is appropriate to recall at the outset that the domestic market of the PF is characterized by the coexistence of a large number of small operations and a reduced number of amount, though, particularly high. The two types of PF necessarily differ in some respects, such as the opportunity to have recourse to a special purpose vehicle, essential tool for large amounts of PF. These guidelines are designed primarily for the large amounts of loans, but they apply with the appropriate accouterments including those of reduced amount. 3. the granting of work and services and project financing 3.1 the distinctive elements of the concession with respect to the contract and risk allocation Code defines (article 3, paragraph 11) works 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 ", under the conditions laid down in the code. Compared to the original definition, art. 42, paragraph 2, point a) of Decree-Law December 6, 2011, # 201, convertito con modificazioni dalla legge December 22, 2011, n. 214 (urgent provisions for growth, fairness and the consolidation of public finances) introduced the prediction that "the functional and economic management can also target, possibly in advance, works or parts of works directly related to those object of the concession and to encompass the same». Therefore, in granting jobs and now expected normatively the possibility of exploitation of a work even before they have completed all the work planned in the concession contract. Unlike for jobs, the code contains a limited number of prescriptions regarding the granting of services. Under subsection 12, art. 3 of the code, granting of services is a contract of the same type as a public service contract, ' except for the fact that the consideration for the provision of services consists either solely in the right to exploit the service or in this right together with payment, in accordance with art. 30. " In turn the art. 30, contains rules for simplification and derogations for the award of concession contracts for services, by providing that: "except as provided in this article, the provisions of the code do not apply to service concessions '. In essence, for the award of services concessions it is predicted that, without prejudice to the application of specific disciplines that provide more broad forms of competition, the selection of the concessionaire should be done in accordance with the principles contained in the Treaty and the General principles relating to public contracts. The selection of the concessionaire may take place after informal race which are invited at least five competitors, if there are in that number qualified subjects in relation to the object of the concession, and predetermination of selective criteria. However, for the PF, art. 152, paragraph 3, of the code provides that "the provisions of this chapter shall apply, mutatis mutandis, to services, with the terms laid down by regulation". These methods are now regulated by art. 278 of regulation. In that regard, it should be pointed out that the 2014/23/EU Directive on the award of concession contracts unifies and works concession definitions of service concession and the relevant regulatory bodies, surpassing the dichotomy existing today. However, what characterizes the granting, whether service jobs, differentiating it from the contract, it is the allocation of risk between administration and auto dealerships. In the absence of alea related to management, indipendentemenre by nomen iuris is used, do not configure the concession but the contract, in which there is only the entrepreneurial risk arising from the incorrect assessment of construction costs, from poor management, from breach of contract on the part of the trader or by force majeure. The concession, however, at your own risk of the contract, adding market risk. Therefore, in the absence of an actual transfer of risk on the part of the concessionaire, procedures must be typical of the contract and related costs must be fully accounted for in the financial statements of the contractor. The new EU directive, art. 5, paragraph 1, specifies clearly that the necessary content of the concession contract and the transfer of operational risk management tools or services related to the dealer, I mean the possibility of not being able to recover the investments made and the costs incurred for the transaction. The portion of risk transferred to the dealer, in other words, must involve a real exposure to market fluctuations so that every potential estimated loss incurred by the concessionaire is not purely nominal or negligible. Operational risk exposes the concessionaire to the risk of losses arising from imbalances that can generate both on the demand side (for example, market demand lower than budgeted) both on the supply side (the provision of services is not in line with the market demand). In other words, you have a operational risk when not guaranteed when running the economic-financial equilibrium expected during custody. For concessions of works, with the decision of February 11, 2004 Eurostat has determined the conditions under which a work is deemed public budget or the private sector, that is, the conditions for which expenditure on infrastructure may be located outside the State budget. To this end, Eurostat identifies three main types of risk: 1) construction risk (the risk linked to delays in delivery, additional costs, inadequate design standards);
2) risk of availability (it is the risk related to performance of the services that the private partner should make and takes the form of the potential cuts in public as a result of payments penalties if service standards are not met);
3) demand risk (which concerns the possibility of variations in demand, above or below the expected level at the time of signing the Ppp contract, regardless of the quality of the services offered by the private partner). In addition to these risks, there are others that are common to all project types that occur in the long run, such as authorization, regulatory, political, financial, etc. A work created with the Ppp has no impact on public budgets if the private partner claims the risk of building and at least one of the other two risks (risk of availability or demand risk). The criteria identified in the aforementioned 2004 Eurostat Decision must be supplemented and updated with the contents of the new European system of national and regional accounts published by Eurostat in may 2013 (cd. "SEC2010"), which from 1 St September 2014 has replaced the Esa95 previously in force. The SEC2010 covers the main forms of risk the risk of residual value and obsolescence "linked, for example, to the fact that if the Ppp provides for the delivery of the infrastructure at the end of expiration of the concession, the value of purchase or takeover may be lower than expected. In addition, an indispensable complement to the SEC2010 it is the manual on government deficit and debt (Manual on Government Deficit and Debt-MGDD), first published by Eurostat in 1999 and last updated in August 2014, which devotes chapter 4 of part VI at Public Private Partnership. In particular, as regards the above risk policy, the new manual, reiterating that in order to take account off balance the target assetts of Ppp it is necessary a clear demonstration of endurance on the part of the private risk majority, States that the relevance of risk shall be evaluated taking into account the impact on profitability, both on the financial profile of the partner. For proper risk allocation, it reiterates the relevance of factors related to public funding of investment costs, in the presence of Government guarantees, contract clauses and the surrender value of the asset at the end of the concession. It is stated, inter alia, that, as regards the public funding, for example, be identified different forms, such as the supply of risk capital (equity) or credit capital (Bank loans), alongside more traditional forms of public contribution. In all these cases it is established that when the cost of capital is mainly covered by the State in any of the above forms, this indicates that the State takes over the majority of risks. In addition, the increase in the level of funding, from minority to majority, during construction can result in reclassification on balance of the asset, namely its imputation on the budget of the public body. Even the presence of Government guarantees can represent an item likely to affect the accounting treatment of the transaction, as these can affect the distribution of risks between the parties. In this regard, it is clear that the guarantees may require registration or the reclassification of assets on balance when they ensure integral payment protection insurance or a private course on investment performance by the subject. As discretive ambiance is indicated the criterion which the work should be accounted for on balance when the combined effect of collateral and public contributions cover more than 50% of the cost. In this regard, the new manual covers the application of rules also to cases where an administration provides a guarantee to the partner that is not directly linked to the debt in relation to a specific project in Ppp. On this point, it is necessary to draw also recital 19 of Directive 2014/23/EU which indicates the possibilities for sectors with regulated tariffs, of contractual agreements providing for partial compensation of operational risk, including compensation for early termination of the contract for reasons attributable to the contracting authorities or due to force majeure. Also the allocation of the asset at the end of the contract, as mentioned, represents an item likely to affect the accounting of the intervention. In particular, it may affect the accounting on balance of infrastructure if one of the following three conditions: 1. it is agreed a fixed price that the Administration must pay at the end of the contract and this price does not reflect the market value of the asset;
2. is there a price higher than expected economic value;
3. There will be a lower price than expected economic value because the Administration has already paid previously for the acquisition of the asset. Recalls, therefore, the attention of contractors to a proper assessment of recurrence, in individual cases, of the conditions and assumptions that characterize the distribution agreement, distinguishing it from different contractual instrument contract value. Proper legal classification of the operation carried out it is indeed indispensable for the correct identification of the legal framework and accounting to be applied. In this regard, we recall the consequences in administrative and accounting liability point for any further costs incurred by the Administration because of improper use of Ppp contracts and the PF. In particular, it is useful to underline that the administrative courts have sanctioned the nullity for cause ' was unlawful, according to art. 1344 of the civil code ("contract fraud to the law"), of a concession contract which had not been observed the precepts of risk distribution community (see Tar Sardinia, March 10, 2011, ruling # 213). In terms of administrative and accounting liability the Court of Auditors has repeatedly highlighted the need to ensure that the contract to be concluded has the features of Ppp with use of private resources under subsection 15-ter of article. 3 of the code and does not represent an elusive mechanism of the prohibition on the institution's debt is for previous violations of the stability pact that for breach of the parameters under art. 204 TUEL (v. ex multis, Court of Auditors, section reg. Contr Veneto, September 2, 2011, 2011 # 352//par, on the subject of real estate leasing). (1) 3.2 the value of contracts in accordance with art. 29 of the code, "the calculation of the estimated value of public contracts and concessions of public works or services is based on the total amount payable, net of VAT, assessed by contractors. This calculation shall take account of the estimated total amount, including any form of option or contract renewal ". The words contained in code similar to that present in art. 9, paragraph 1, of Directive 2004/18/EC. It is a formulation that raised many difficulties of interpretation, particularly represented by the lack of understanding on the part of contractors that have to be included in the calculation of that value all proceeds of any kind in favour of the concessionaire, including revenue from users of the service. Such difficulty of interpretation has often led not to recognise the Community dimension for loans eligible to generate high income for the concessionaire. Please note that for concessions over Community thresholds, even with a simplified scheme for submission, the European Commission in its interpretative communication on concessions of April 12, 2000, on the basis of the guidelines constants of the Court of Justice, indicated the opportunity to publish warnings about concessions in the EU's official journal. In any case, a proper determination of the estimated value of the concessions puts competitors on terms of equality to the participation in the race. The new directive 2014/23/EU has listed the items that contracting authorities must take into account in calculating the value of the concession. It is, in particular, by: a) the value of any form of option and any extension of the term of the licence;
b) revenue from payment, from users of works and services, rates and fines other than those levied on behalf of the contracting authority or contracting entity;
c) payments or any financial advantage conferred to the dealer in any form by the contracting authority or contracting entity or other public authorities, including the compensation for the fulfilment of a public service obligation and public subsidies;
d) the value of subsidies or any other financial advantage in any form whatsoever conferred by third parties for execution of the concession;
e) the revenue from the sale of assets forming part of the concession;
f) the value of all supplies and services made available to the concessionaire by the contracting authorities or contracting entities, as long as they are needed for the execution of works or the provision of services;
g) each award or payments to candidates or tenderers. Although the directive has not been transposed, it is necessary that the contracting authorities comply right away to the indications contained in that article, as this is a standard that has principles of competition, to which the authority has always inspired in their actions (see for example the decision of June 20, 2012, # 62 concerning the granting of paid parking management service). 3.3 characteristics of project financing between the different forms of Ppp a central role is played by the project financing. This term indicates the financing of a project able to generate sufficient cash flow to reward their investment and to guarantee a profit. From the perspective of financial technique for the PF Constitution expected of a vehicle, called "special purpose vehicle" or project company ("Spv"). The purpose of the Constitution of the Spv is to separate the fate of the project from the lenders. Actually, you have to immediately highlight how Italian law, art. 156 of the code, provides the only possibility for the dealer to choose, after the award, the Constitution of an Spv. Once you make this choice, the Spv will succeed the dealer, without that what constitutes a transfer of the contract. The discretion in setting up an Spv could be one of the reasons for the spread in Italy also PF instrument for loans small sums. Although the technique of PF cannot be separated from the Constitution of an Spv limited amounts of projects, it is believed that the Spv should be at least always present for all high-value loans; this to ensure the private sector a chance to access off-balance financing that does not affect their debt ratios, and to limit both the effects of a possible failure of the project. To administer the major advantage is represented by a greater guarantee of execution of the project. PF transactions differ from those in corporate finance in crucial aspects such as funding guarantees, the accounting treatment (referring to the promoter and only in the presence of Spv), variables based on expectations and degree of leverage used. In FP funding guarantee moves from the assets of the borrower of funds (corporate finance) to the assets of the project; the accounting treatment is off balance, the main variables in base of custody are the expected cash flows from the project (and not the financial solidity of the promoter or profitability wait) and the lever is usable in function of these. The financial structure, usually characterized by a solitary cashflow and a system of contractual guarantees make the PF a form of financing more efficient compared to the traditional one, as project funding by banks is based on its creditworthiness and not on that of its sponsor. However, we must consider that the cost of a traditional bank financing for Government it is lower than the average cost of capital in an operation of PF. From this follows that the assessment of the usefulness of recourse to PF by the Government cannot confine itself to considering the pure financial aspects, but must consider the benefit from the transfer of risk, as well as the opportunity to quantify that advantage. In other words, the Administration must carefully consider the transfer of risks with the objective of responding to the needs of citizens in less time and with quality standards. The choice of risks should be transferred to private operator is crucial to the achievement of the "value of money", as a PF operation convenience margin compared to a traditional contract. Basically, there are three characteristics: 1. the finanziabilita PF immanent ' project, intended as a check of the production cash flow sufficient to cover operating costs, to pay the debt and to guarantee a profit to the sponsors in consideration of risk capital;
2. the "ring fencing", that is the definition of a new subject, the Spv, which are given the financial means for the project with simultaneous separation of project sponsors ' budget (off balance);
3. the Constitution of sufficient guarantees, not only in favour of the lending banks ("security package"). As a PF takes place on a long period of time, the interaction between the various actors involved (public administration, sponsor Spv, financing banks, Builder, Manager, suppliers and end users) is necessarily a long time horizon. Efficient management of PF requires, then, among other things, the ability to be able to reduce the time of the operation and to prevent all those elements of friction that can slow or prejudice the achievement of the objectives. 3.4 the centralization of supply The art. 33, paragraph 3-bis of the code provides that ' the municipalities not capitals are proceeding with the acquisition of works, goods and services within the unions of municipalities under art. August 18, 2000, 32 of Legislative Decree n. 267, where they exist, or by establishing a separate consortium agreement between the municipalities and the competent offices of the provinces, or resorting to a topic aggregator or to the provinces, under the April 7, 2014, # 56. Alternatively, the same municipality may acquire goods and services through electronic means to purchase managed by Consip S.p.A. or other entity reference aggregator. The authority for the supervision of public contracts for works, services and supplies does not release the identity code (IGC) to municipalities not provincial capital who process the acquisition of works, goods and services in violation of the requirements provided for in this paragraph. For municipalities established subsequent to merger the obligation referred to in the first period starts from the third year following the institution '. With the determination # 3 of February 25, 2015 authority has provided the first interpretive signs about regulatory obligations contained in that provision. In particular, with reference to the objective scope of application of art. 33, paragraph 3-bis of the code, the authority has made it clear that the same discipline the acquisition of works, services and supplies in the fields and in the special sectors (by virtue of art. 206), including the award of public works concessions. In this sense, argues the provisions of art. 142, paragraph 3, of the code, that "to public works concessions, as well as to public works contracts entrusted by concessionaires which are contracting authorities, shall apply, unless they are waived in this chapter, the provisions of this code," among which is contained in art. 33, the application of which is not waived by nothing. The cited art. 33, paragraph 3-bis does not apply, however, to contracts excluded from the scope of the code and the granting of services (article 30 of the Code). This being so, in order to establish that the provision also applies for grants assigned by project finance must have regard to the provisions of art. 152 of the code that, in the opening of chapter III (title III-Part II of the code) dedicated to «private banking, project and discipline of leasing company for the work and the contract for availability» find the common framework applicable to such procurement procedures. In particular, article. 152 provides for the application of the provisions of title I-part II of the Act (in which is contained the art. 33) only "as not inconsistent with the provisions of the said chapter III." In this regard, it is noted that centralization would allow, especially in a sector such as project finance, characterized by a particular technical, economic and legal complexity, reduce risk associated with operations of procedures, by virtue of the greater responsibility of subjects of increasing specialisation and aggregators that others should be ensured for the centralization of supply. Additional benefits can be derived from the centralization in terms of programming, design, non-duplication of operations and reducing costs. However, as already highlighted by the authority in the draft determination concerning "Obligation for municipalities to provincial capital not proceed with the acquisition of works, goods and services in the aggregate-art. 33, paragraph 3-bis, Legislative Decree of April 12, 2006 # 163 e ss.mm. ii. -Additional addresses there are application difficulties of interpretation» paragraph 3-bis art. 33 of the code to concessions, given the specificity of the same and the need for very tight fitting that operating a concession report imposes the possible plurality of licensing bodies. Reference is made to the difficulties of aggregation of interventions to be carried out, having regard to their specificity, which is more easily conceivable a centralization of procedures rather than an aggregation of purchases (which can easily happen anymore, instead, for services and supplies); or, again, to the difficulties related to the management of the entire procedure which entails the active involvement of Government (think of the change request to the preliminary draft and, in case of rejection of the promoter, the questioning of those who follow on the list-article 153, paragraph 3 of the code). 4. The phase of programming under art. 128, paragraph 1, of the Code of execution of works of more than 100 thousand euros "takes place on the basis of a three-year programme and its annual updates that contracting authorities shall prepare and approve, in accordance with the statutory documents, programming, and zoning regulations, together with a list of work to be carried out in the same year." According to paragraph 2, the three-year program represents an implementation of feasibility studies and identification and quantification of the needs that each Contracting Authority shall establish autonomous in the exercise of its powers. In accordance with art. 13 paragraph 1 of the regulation, a three-year program for the work is drawn up every year by updating the previously approved for the work to be performed in the following three years. The pattern of program is made public, before its approval, by posting at the headquarters of the contracting for at least 60 consecutive days and by publication on the buyer profile. The final program, pursuant to paragraphs 11 and 12 of article. 128 of the code, must be published on the website of the Ministry of infrastructure and transport, in virtue of the provisions of art. March 14, 2013, 38 of Legislative Decree No. 33, on the institutional site of the Administration, and for extreme, on the site of the Observatory and broadcast, within 30 days of its adoption, the CIPE after approval for the verification of compatibility. The program indicates, "in type and in relation to specific categories of interventions, their objectives, the expected results, the priority, environmental issues, localizations, landscape and urban-territorial, relations with regional planning or sectoral plans, available resources, estimate costs and timing of implementation '. The priority of the program give priority to public utility assessments compared to other items in accordance with the provisions of the code. The program must contain an order of priority of the works envisaged, focusing on maintenance of existing heritage, of completion of work already started, Executive projects approved, as well as interventions that require funding with private capital majority, as susceptible to economic management. The adoption of three-year programmes and annual lists of the work must be based on schemas type approved by the Minister of infrastructure Decree containing guidance on availability of resources and funding to share for the categories and types of intervention (article 128, paragraph 11, of the code). The art. 271 of the regulation provides the programming principle also for services and supplies, limiting it only to one year though. However paragraph 1 stipulates only a right and not an obligation, as expected for public works, leaving it to the discretion of the public administrations to prepare an annual plan. Pursuant to paragraph 4, where the authorities have prepared the program, the purchase of goods and services not budgeted can still be ' in the case of urgency brought about by events unforeseen or unforeseeable when programming». The lack programming in the area of services and supplies you can pass in a lack of transparency in the choices made by the Administration, choices that may even end up being motivated by self-interest, if not patronage, rather than public needs. They are symptom of these problems the fragmentation of credit lines, the frequent recourse to contract extensions, the initiation of negotiated procedures without ban motivated by mere urgency to arrange, the imprecise definition of the object of the contract with respect to the technical specifications and/or amount, the loss of control over spending. For these reasons, in order to favour maximum transparency and the fight against corruption, the preventive programming becomes the rule. In that regard the authority in determining the November 6, 2013, # 5, noted that: "Although optional, ... programming is not just a moment of clarity critical to determining the framework of needs, the evaluation of procurement strategies, optimization of resources and control of management stages but the effective implementation of the principles of good performance, economy and efficiency of administrative action. In this sense, the stage of functional programming and design to ensure that appear an overview of performance of the contract cycle, improving the chances of the efficient management thereof, starting from the identification of needs, to verify the proper functioning of the service; This verification can be effective only if the contractor is able to compare the performance run with quantitative and qualitative levels promised in the race and defined in the contract, according to the amount and the timing agreed upon. " The opportunity to inform, through programming, the market and the area around the method of managing services for surveying and is especially noticeable for a sector such as the PF, in which it is required the intervention of private capital and are delegated to the subcontractor management and (partly) the configuration of the service. The code States that for jobs of less than one million euros is included in the annual plan at least one feasibility study, while for those in excess of at least the preliminary draft. For maintenance work and for those entrusted with PF the code provides the only feasibility studies (article 128, paragraph 6 and article 153, paragraph 2). The ratio of the forecast is to be found in greater freedom of economic initiative that is left up to the adoption of the specific tool of PF; However, this can affect the feasibility of the project. In fact, especially for more complex interventions, the preliminary project approval stage and acceptance of design changes by the promoter can take a long time and this can result in a substantial change in the Economic Outlook on which was based the bid and, therefore, the expression of interest by banks. In any case, in order to speed up the procedures for the award of the PF, which may be affected because of the difficulties mentioned above, the d.l. June 22, 2012, n. 83, converted, with amendments, by law no August 7, 2012. 134 introduced important changes as regards the preliminary conference services and the requirements for the preparation of feasibility studies in FP. In particular, subparagraph 1 of paragraph 1-bis, by introducing in art. August 7, 1990, 14-bis of law No. 241, has made it mandatory for public administrations to hold a preliminary conference services with the task of expressing themselves on the basis of the feasibility study, specifying that the decisions taken in that forum are binding for the same, and can be changed in the subsequent procedural steps only if there is new evidence and relevant. The institution of preliminary conference services has the dual purpose of implementing a greater involvement of private investors in the implementation of public works, and to simplify the administrative action through coordination among the various institutions concerned in order to compose the sometimes conflicting interests involved. In fact, it would be desirable, in order to reduce the time for the project, that the Administration could guarantee the acquisition of all necessary authorizations, opinions and acts of assent however denominated by the award phase, it is also foreseen in the draft law delegated the transposition of European directives. The lawmakers, including the importance of placing in a complex and detailed project feasibility study, with paragraph 2-bis art. 153 of the code has strengthened this instrument, entrusting the writing staff the administration only on condition that possesses the necessary personal qualifications of technical expertise for its preparation and providing in absence of adequate professionalism, reliance on external stakeholders through selective procedure. (2) the adjustments made to the preparation of the feasibility study does not have gone as far to predict the need for prior consultation with stakeholders from the interventions that you intend to achieve, although in the past there were drawings and bills. Too often, in fact, the opposition of the population the implementation of operations in the territory, also due to shortcomings in comparison with the same for the selection of interventions and methods of implementation. What causes inevitable delays, particularly at the stage of completion of the work, resulting in rising costs and litigation. These phenomena concern not only the construction of important infrastructures but also limited interventions in many cases, such as the construction of a parking lot. Early consultation can be a way to capture the contribution and the views of stakeholders from the assistance concerned and to reduce the risk posed by the political changes which may contribute to the client as a result of the change of majority for early elections. The public consultation, in fact, it can be appropriate to separate the fate of individual project from that of the majority stockholder, as it's been rated and approved by stakeholders. Regardless of that instrument in prediction explicit reformed Code of contracts, it was noted that currently there is no standard objection to the holding of a prior consultation at a time before assessing the feasibility study and, therefore, the preparation of programming documents. Such consultation could take place, for example, by means of measures to inform the public concerned about the nature of the interventions that you plan to run (such as press releases, disclosures to groups already set, etc.), as well as the creation of a page in the website of promoter time, besides informing, also to receive any comments, requests, etc. whatever the method chosen, it draws the attention of contractors on the need that such prior consultation is not reduced to a merely formal communication but ensuring effective participation of stakeholders and the community concerned. To this end it is necessary to provide stakeholders all the useful information for a real comparison, in compliance with the rules on access to documents. It is also important to motivate your choices, explaining the assessments made with reference to what is represented, in consultation, by stakeholders. In order to limit of time, it would make sense that this form of "debat public", as far as possible, the same time as the preliminary conference services. The feasibility study that ensues, so perfected, will develop a potentially eligible to form a comprehensive framework, foresee all the possible interference and provide appropriate solutions to reality where the project fits. In this regard, it should be noted that art. 1, comma 1, letter ll) of the enabling Act for the transposition of European directives is expressly stated the criteria for delegating the guarantee of transparency and publicity of the proceedings in PPPs. Takes therefore verify whether internal law will be introduced mandatory forms of publication on the web of a dataset refers to each Ppp contract that includes information from the planning phase until the end of concession contract management. This is a prediction of transparency which, in addition to responding to information needs and typical comparison debat public, has obvious and important reflections in terms of cost control and quality of the work as well as risk prevention of corruption. 5. The feasibility study 5.1 Introduction in code, art. 128, the feasibility study is described as a tool implementing the three-year program, in which to return the State of analysis made under the historical-artistic, architectural, landscape, profiles of environmental sustainability, socio-economic, administrative and technical. This is therefore a tool with content planning and budget needed for the quantification of instrumental works to meet the needs of contracting authorities and the preliminary design document as processed to be placed based on race in proceedings referred to in art. 153 of the code. The feasibility study must be able to transform the initial idea-project in a specific hypothesis of intervention, through the identification, specification and compare, where possible, more alternatives to grasp different modalities of realization of the original idea and allow the Administration to implement a choice motivated. At the same time should also have enough content to be able to issue a call for tenders and, therefore, to include in the notice the participation requirements and the amount of the investment. In the Bill for the transposition of the European directives on public procurement and concession is designated, the criteria for delegation, that the feasibility study, while continuing to represent the document place based on race, have to have a level of detail and detail more than provided by current legislation. In particular, the feasibility study should contain items suitable to check levels of financing the job done; such action shall be actually performed by the Administration in order to compete with established funding projects. What in order to reduce the risk of failure to the award of the tender, very often resulting from the financing difficulties of the work, and to contain the timing for the project, most often delayed by the long interval between the initial moment of financial planning and closing. It is clear, then, the substantial role that assumes the feasibility study and the need to identify clearly the minimum contents indéfectibles, in connection with the dual function assigned to it. In order to draw up a schedule consistent with the actual needs of the community, as a first step, it is necessary to provide for the collection of all elements required to form a complete picture of the needs and requirements of the community. In this respect, indeed, article. 11 of the regulation does not give specific directions. In any case, should be evaluated by the Administration and by the head of the proceeding three profiles: a) the demand to be met for the reference collective and ongoing opportunities, identifying qualitative and quantitative standards of performance of the services required, which are objective and measurable;
b) plans and strategies of administration or other interested entities or parent;
c) obligations arising from national and Community legislation. The quantification of the application shall consider, in addition to the requirements of potential users, basin specific technological and financial solutions are also envisaged. The identification of the application cannot be generic, but should be based on easily identifiable and measurable parameters. This also because the correct detection of potential demand is a key element for the determination of costs and potential returns on investment and, therefore, for the definition of the business plan. It is clear, for example, that any request for review of the business plan (and, therefore, user fees), motivated with unintended changes and plannable not necessarily final demand will be based on indicators identifiable and measurable already present in the procurement documents. As highlighted in the previous paragraph, the detection and quantification of demand be met should benefit from forms of participation, of the type of debat public French. The Conference services required as referred to in paragraph 1-bis of article invoked. August 7, 1990, 14-bis of law No. 241, it is intended to constrain the administrations to define their own needs and to introduce to the market even though they cover clear proposals, offering solutions that any compensatory works as may be necessary to mitigate the environmental impact, territorial and social. The feasibility study has the purpose to transform an initial idea-project in a specific hypothesis of intervention by identifying, specifying and comparing alternative anymore with the function of identifying different mode of satisfaction of need and fulfillment of the original idea. 5.2 choosing the model of implementation of section: public and private partnership procurement or infrastructure can be carried out either by the formula of the contract with resources fully borne by the Administration, or by one of the formula of Ppp (pursuant to article 3, paragraph 15-ter). To this end it is necessary to assess, by public authorities, whether it is convenient to make a special form of partnership with the private or, otherwise, use a more traditional contract. This analysis must be done separately in relation to the characteristics and dimensions of the surgery that is expected to be achieved and the economic resources available. In particular, you will have to take into account at least the following aspects: i. a legal framework and regulatory framework compatible with the intervention;
II. the existence of risks transferable to the private party;
III. organizational capacity and the presence of the know how of the public administration to undertake an operation of PPPs;
IV. the chance to practice a system of payments to tie to set quantitative and qualitative levels within the management;
v. the tariffabilita ' of the services to be provided and the verification of the consent of the community to pay these services. Such a control could provide elements which can be directly used in the processing of the notice in order, notably, to the most appropriate method of selection of the private partner. Verifying the feasibility of Ppp must be done when there are a few details regarding the options for the implementation of project ideas, but in any case before the end of the feasibility study because, for example, an outcome favorable to the Ppp could also result in a waiver of the project. All this means that: a) tendering procedures are adjusted through competitive mechanisms and competitive;
b) the risks related to the construction and management of the work are clearly identified, evaluated and placed in the subject able to assume it;
c) proper quantification of costs related to risks to allocate to reduce information asymmetries ascribing greater awareness to the administration. The Administration should find it convenient to maintain a given project using a Ppp scheme and not through a traditional scheme of the contract only when the expected return for the entire company is positive. The value for money of PPPs is the financial benefit derived for Government by recourse to this type of operation. To this end it is necessary to consider, in addition to the cost of investment for the realization of a specific project, the total cost of the work throughout its useful life, taking into account the cost of maintenance and operation as well as the different types of risks associated with the project that may translate into cost elements. A proper risk assessment is accomplished through the development of a risk matrix. It is whether the optimal allocation of specific risk to be in the public or private entity or whether it would be quite appropriate to consider other forms of shared management. It is clear that more detailed will be the array, the smaller will be the possibility to overlook some aspects of the operation. At the end of the construction of the risk matrix, you should consider the following: a) risk identification, the identification of all those elements that may constitute a risk during the design phase, infrastructure development or management; (3) b) risk assessment, or the assessment of the probability of occurrence of an event associated with a risk and costs that may arise. It is important to define the moment in which the negative event might occur;
c) risk management, identification of mechanisms that allow you to minimize the effects of an event. Optimal risk management in Ppp projects, as already told, consists in the allocation model that is able to handle it better. Example of possible risk matrix part of measure in graphic format in the table it is one possible pattern of risk matrix. The first column shows some types of risks that you may face over the lifetime of the project. In the second and third the probability of occurrence of the event and its consequences in terms of costs (and time/delays in completion of the work and of its use). The fourth column is given a chance to mitigate risk in the event of a transfer of the same to private; It is clear that the answer contained in column (for example, low, medium, high) should be correlated with the percentage of risk retention by the public (column 6) and transferred to private (column 7). In the fifth column shows the tools considered most useful for risk mitigation. The risk matrix could be more detailed, for example, predicting which of the parties involved in the work is transferred the risk (leaving, Builder, Manager, Spv, Bank, insurer, etc.). One of the most popular methods, but not the only, to measure the extent of the value for money is what the public sector comparator (Psc). (4) This evaluation model is based on a comparison of net present value of the costs and revenue generated in two different solutions for contract/grant. The difference between the values, represents the measure of value for money in terms of cost savings in an alternative to the other. In technical terms, the Psc can be defined as a hypothetical cost, adjusted with an element of risk in the event that a work infrastructure is funded and managed by a public body. In accordance with the Psc, the true cost of the work to the public body is given by the net present value of costs (VANc) plus the net present value of risks (VANr). To calculate the Psc requires a complete cash flow quantification of different activities for the whole cycle of construction and operation of an infrastructure. The Psc's calculation is performed by measuring various components:-the Psc basis (raw Psc) which includes the cost of capital and operational costs, both direct and indirect, associated with the construction, maintenance and operation of infrastructure;
-competitive neutrality that involves the removal of any competitive advantage that the administration might achieve in the construction and operation of an infrastructure through a traditional contract;
-the risk which is the risk associated with a downloadable series of events which affect the construction and operation of a work;
-the risk held that it is a risk that cannot be transferred to the private entity and therefore would remain in any case subject to the audience. An example of risk retained can be formed by any legislative changes that have effects on the execution and management of the work. The Psc is therefore the sum of the above components: Psc = Psc base + competitive neutrality + transferable risk + can be used both restrained the Psc risk early on, the Administration will have to decide whether to make a work in PF or through a traditional contract, more downstream phases where the offers of private operators will have to be evaluated. In the first case, the Psc is calculated as part of the feasibility study to feed the public decision-making process. In the second case, the Psc can be used to compare the offers submitted by individuals or assess overall convenience of ex post operation. Once evaluated the risks and costs are defined, with the terms specified above, will determine the true cost of the work to the public, according to the net present value of costs (VANc) + net present value of risks (VANr). This value must be compared with the costs and risks of private party VAN obtainable. Only if the private sector is able to minimize risks transferred from the public sector, for example through the budget of construction, completion, maintenance costs, administration wins ' the c.d. value for money — he's created an operation with efficiency, effectiveness and savings in public resources. 5.3 the contents of feasibility study defining specifically the contents of the feasibility study is to be found in the balance of two opposing requirements: have reliable and complete a feasibility study, giving competitors a chance to make changes to the solution named in the study. Analytical discipline for the content of the feasibility study, especially for jobs, it is contained in art. 14 of regulation. As regards services, pursuant to art. 278 of regulation, the feasibility study by accompanying proposals must allow individuals to the contracting authority, an assessment in terms of functionality, usability, accessibility to the public service, efficiency, management and maintenance cost, the duration of the concession, the rates to be applied, the method of updating the same, the economic value of the plan and of the content of the draft Convention as well as the absence of elements which impede their implementation. The art. 14 of regulation consists of two paragraphs, of which the first contains general provisions on the content of the feasibility study, while the second specific provisions for feasibility studies to be based on race for competitive dialogue and the PF. Paragraph 1 of art. 14 of the regulation provides that the feasibility study, for programming purposes comprises an explanatory report containing: a) the functional characteristics, economic-financial, technical, management of the work to be carried out;
b) the analysis of possible alternatives with respect to manufacturing solution found;
c) verification of the possibility of realization by means of Ppp contracts;
d) the analysis of the State of fact in its architectural components (if any), geological, socio-economic, administrative;
e) preventive assessment purposes, description, environmental sustainability and landscape compatibility of the intervention, of the requirements of the work to design, features and connections with the context in which the intervention is inserted with particular reference to environmental constraint checking, historical, archaeological, scenic areas or interfering with real estate affected by the intervention, as well as the identification of appropriate measures to safeguard the protection of the environment and cultural and landscape values. When following the approval of the feasibility study referred to in paragraph 1, it is established, on the basis of the analyses described in the preceding paragraph, the convenience of entrust the implementation of the project through the instrument of the PF, the feasibility study to be race-based, pursuant to subsection 2, unless otherwise substantiated determination of proceedings, consists of the following processed : (5) a) explanatory memorandum 1. territorial framework, containing: general socio-economic and the assisted area: 1.1. choreography, excerpt from the floor General municipal Governor, verification of compatibility with the planning tools;
1.2. the socio-economic impact analysis with reference to the existing manufacturing and commercial context. The report should, I mean, contain a detailed and precise description of the work which it intends to build, possibly with pictures about the status of territory and similar works that take as a reference. In addition, they should be explained the reasons behind the intervention, to contextualize the socio-economic environment in which it will.
2. the current supply and demand analysis and forecasting with reference to: 2.1. the catchment area;
2.2. the estimate of needs of users through the use of physical parameters related to the specific type of intervention, such as traffic flows and the number of hits;
2.3. the identification, in terms of quantity and current offer and popularity than envisaged in the same areas. The demand analysis involves determining the number of users presumably interested in opera, by hypothesis, information, statistical data (such as those relating to traffic flows and projected number of visits) and consultations on significant samples. Next to the analysis of demand it is necessary to carry out an analysis of the offer, which is to verify if the application finds is already fulfilled or could become pregnant in the near future with alternative tools.
3. analysis of design alternatives: 3.1. identification of design alternatives from the point of view of technological, organisational and financial choices;
3.2. array of design alternatives. It should be here, create a clear picture of the possible alternatives that will deepen the strengths and weaknesses. Different solutions can be assessed in the light of various profiles: localization, characterization and typology of the opera. The alternatives are evaluated on the basis of objective criteria and between them can be counted also the alternative zero intended but not as a "don't do" than as a chance to adopt a conservative solution, by improving on existing interventions. (6) the alternatives must be represented in a matrix, in which are described the strengths and weaknesses of the same.
4. environmental impact study related to design solution identified and possible workarounds: 4.1. brief analysis of geological, geotechnical, hydraulic and hydrogeological aspects, taken from the available cartographies or interventions already made that fall in the area;
4.2. verification of historical, archaeological, scenic, environmental constraints interfering on areas or on real estate affected by the intervention. You must describe the potential impact resulting from the creation of the work with the landscape and with the environment, natural resources, quality of life. We must also identify potential environmental risks and effects of the action, indicating the countermeasures needed to cancel or mitigate the scope, identifying the associated costs.
b) technical report containing: 1. functional and technical specifications of the works to be carried out; For the purposes of preparing the technical report, you must obtain all necessary information to identify the activities and functions to be settled, making sure at dimensional characteristics and displacement of spaces to be used, as well as the functional and technical specifications to optimize the use of the structure. Basically, at this stage we must start from the needs you want to necessarily satisfy and verify if the planned intervention can guarantee them. For example, it is necessary to consider whether certain environments that we intend to achieve are sufficient to ensure access to and usufruibilita of services by users.
2. Description, for the purposes of preliminary assessment of environmental sustainability and landscape compatibility of the intervention, of the requirements of the work to design, features and connections with the context in which the intervention will fit as well as of measures to safeguard the environment and cultural and landscape values. The feasibility study must contain documents relevant to the possibility of adapting the physical conformation of the intervention to the spatial location taking into account any constraints that may affect the implementation or operation. In particular, should be highlighted in detail all those elements that, from a technical point of view, create constraints or changes to the realization of the work related to environmental protection, respect for cultural and landscape constraints, as well as the interference. This also in order to avoid that the run time of the work we should move to the creation of variants.
3. brief analysis of building techniques and indication of the technical rules to be applied.
4. schedule. The Schedule refers to the implementation phase of the intervention. If the Administration intends to approve the Faculty referred to in art. 143, paragraph 4, of the code, namely the economic management of functional excerpts, even earlier than the conclusion of all the work, the schedule must also detailing the timetable for the implementation of the individual components.
5. estimate of the intervention according to the terms of art. 22, paragraph 1, (7) of regulation with the identification of the categories listed in Annex A and the related amounts, determined by applying the percentage of shares corresponding processes compared to the total cost. The regulation lays down as a general rule the application of standardized costs for purposes of calculating cost of service. In the absence of such standardized costs can refer to similar actions realized or to a schedule of quantities. It is, of course, rough estimates, since you are still in a stage of feasibility study of the intervention; However, these estimates, along with those in the technical-economic processed, are critical to assess the viability of the opera.
c) project established the head of the proceedings between those under art. 21; The outermost regions, where it deems appropriate, can choose to include in the feasibility study further projects, identified among those indicated in art. 21 for the preliminary draft.
d) elaborated technical-economical containing: 1. verification of the possibility of realization through concession with respect to the contract. Technical-economic report must contain first elements for which it is considered appropriate to proceed with a licence. These are the elements already tested for use, for example, the Psc tool.
2. analysis of financial feasibility (costs and revenues) with reference to the building and, in the case of grant, stage management. In this part must be made an analysis of the expenditure and revenue streams for both the construction phase and for the management. This is to evaluate pay items (which they support, especially during the construction work and for its maintenance) and income (taking place when the construction phase is over and the management of the work). The time frame of reference becomes a deciding factor to calculate the financial sustainability of an artwork, as well as the discount rate used to discount future revenue and cost streams. At this stage you must perform a risk analysis in time, considering the different design alternatives, through the risk matrix. The risk matrix, as already pointed out, should disclose the nature of the risk and its allocation: principal, private partner or both. Please note that a correct estimate of costs and revenues, as well as representing an essential element in the proper allocation of risk is a key element for the financing of opera.
3. Economic and social feasibility analysis (cost-benefit analysis). The analysis of economic and social feasibility of a public work is intended to verify the degree of usefulness to the community. This analysis differs from the previous one because it must also be considered the benefits and costs (non monetary) of the intervention. It is an example of an artwork of hydraulic characteristic whose defense is reducing flood risks, or whose benefit to the community is represented, not so much from an immediate revenue, how much by the reduction of a risk and, therefore, of possible future charges. In this case, for the financial sustainability of the work, it is necessary to check how it is paid for the dealer. It is clear that economic and social feasibility analysis about the reasons of the intervention, while financial feasibility analysis pertains more to viability ' of the same partnership tools.
4. in the case of tariff concession system diagram. This scheme is clearly essential to define revenue streams for the dealer. It is also important for the accessibility of the work by the user. For example, provide for high fees for customers can reduce their appetibilita ' for the same and, therefore, do not allow you to determine those flows of income necessary to ensure the financial feasibility of the work, as well as reduce the expected benefits from the same.
5. essential elements of the outline contract. As shown below and in more detail, the contract represents a key document for the PF, as it intended to regulate relations of long period between all participants. Knowledge of the main rights and obligations of the concessionaire relationship, already in the tendering stage allows you to make more informed its offer. 5.4 feasibility study custody and its feasibility study fees should be, as a rule, drafted by the technical offices of Contracting; in accordance with paragraph 2-bis art. 153, shortage of highly qualified personnel, the preparation of all or part of the feasibility study can be carried out by external parties to the administration. Alternatively, on the basis of formality with which will be transposed European directives on public procurement and concession that could be envisaged, among other things, the tool of commissions, administrations can make use of auxiliary support topics, technical units that deal with planning and management of operations, structuring, monitoring of contracts, within the public administration. For the selection of the subject, or reuse, to instruct to the feasibility study, the proceedings shall specify in the contract notice all the services required to ensure cross discipline ' and integration skills. Considered the referral procedures provided for in the code, the generic procurement procedures may involve research or related services listed in annex II A of the code, or, often, design services, under art. 91 of the code itself. This is a task which includes several types of services: the notice for the award must indicate the necessary qualification for individual performances. With regard to the consideration to be race-based annex Z2 d.m. October 31, 2013, # 143, «regulation on determination of fees to be based on race in public procurement procedures of public contracts for services relating to architecture and engineering ', States now charges for different services within design part of feasibility studies. (8), in addition to those charges in the pricing based on race, are required to explain the method of calculation in order to ensure maximum transparency. 6. The method of carrying out the process in a single match (paragraphs 1-14) the choice of procurement procedure 6.1 paragraph 1 of art. 153 indicates that, as an alternative to the procedures laid down for the granting of concessions, in the case of PF you can follow the procedure as described in paragraphs 1-14 of the same article. (9) However, it is considered appropriate that the contractors should evaluate the possibility to anchor the PF to only race of standard procedures in your code, in order to avoid the possible occurrence of litigation. The obligatory reference point, it seems so, by analogy, the provisions of art. 144 of the Code concerning the granting of jobs, as well as by art. 58, paragraph 15, of the code regarding the competitive dialogue. The art. 144 of the code provides as the open procedure or procurement procedure that small. Remember also that in accordance with art. 55, paragraph 2, of the code, the contracting preference using the restricted procedure where the contract is not concerned only, or where the criterion for award is that of the economically most advantageous tender, so as expected for works concessions. The art. 58, paragraph 15 of the code also stipulates that the procedure of the competitive dialogue may lead to the award of a concession of works. It is recalled that, pursuant to art. 58, paragraph 1, of the code, "use of the competitive dialogue for work it is allowed after obtaining the opinion of the Superior Council of public works". Recently, with d.l. June 21, 2013, n. 69, converted with amendments by law August 9, 2013, # 98 was introduced to paragraph 3-bis under art. 144, which introduces a "hybrid" form of competitive dialogue. In essence, it is expected that: «for concessions to rely with the restricted procedure, the invitation can be expected that the contracting authority may convene, prior to the deadline for the submission of tenders, a prior consultation with economic operators invited to submit bids in order to verify the absence of criticality of the project tender place in terms of finanziabilita ' , and may provide, as a result of the consultation, to adapt the tender documents updating for the submission of tenders which may not be less than thirty days from notification to interested parties. It can't be the subject of consultation with the amount of tax exemption measures under art. 18 November 12, 2011, law no 183, and art. October 18, 2012, 33 of Decree-Law n. 179, converted, with amendments, by law no December 17, 2012. 221, as well as the amount of public contributions, if any. " The authority, with the Act of reporting # 2 of July 4, 2013 establishing a ' intervention remarks and proposals concerning public procurement», did not share the choice to introduce a new award procedure, such as that contained in the new wording of paragraph 3-bis, since the competitive dialogue is already usable for the awarding of the concession work. The possible tender procedures are as follows: (10) part of measure 6.2 graphically the steps in a single match in the procedure a unique race, covered in paragraphs 1-14 of the art. 153, the contracting authority: 1. publish a call for tenders, with the same base a feasibility study;
2. considers the offers that are received within the time specified in the notice;
3. draw up a ranking according to the criterion of the economically more advantageous and appoints a promoter who has submitted the best tender; the appointment of the promoter can take place even in the presence of a single tender;
4. highlights approval the preliminary draft presented by the promoter, subjecting it to conference services;
5. when the project does not require design changes, proceed directly to the contract of concession;
6. otherwise requires the promoter to carry out the changes that have occurred in the process of approval of the project. The preparation of these amendments and conducting such formalities, as the promoter's burden, incurs no additional compensation or increase in expenses and financial plan for the preparation of tenders;
7. If the proposed changes are not accepted by the promoter, the contracting authority, fixing the time-limit for replying, has the power to require progressively subsequent competitors in ranking the willingness to conclude the concession contract, upon review of the preliminary draft of the promoter, any adjustment of the business plan, as well as the conduct of all legal obligations. If it is awarded the concession to anyone other than by the promoter, the latter is entitled to payment, paid by the buyer, the amount of the costs incurred for the preparation of tenders, including rights to original works of art. 2578 of the civil code, to an extent not exceeding 2.5% of the value of the investment, as illustrated by the feasibility study place based on race. So if the preliminary draft can be approved as presented within the competition, the Administration has an obligation to conclude the concession contract with the promoter; otherwise, if the project requires amendments to the contract will be signed with the promoter if he agrees to do the changes, otherwise with the contestant on the list that, when questioned, accepts the changes to the project. 6.3 Content of the notice and the tender regulations is expressly prescribed the publication of the notice, as well as on information sites under art. 66 of the code, also in the Gazzetta Ufficiale della Repubblica italiana and in the official journal of the European Union (for loans above-threshold). The contracting authority should treat with particular attention the contents of the notice and the specification, to invoke specifically in the same notice (pursuant to art. 153, paragraph 7). It is recalled that the notice must include, in addition to the content of article. 144 of the code and the feasibility study, including: a) the possibility for the contracting authority to ask the promoter to make changes in the approval stage of the project and that the grant will be awarded to the promoter only subject to the acceptance by the latter, of design changes and the resulting adjustments to the economic and financial plan;
b) the right to the contracting authority-in case of rejection by the promoter to make changes to the preliminary draft-consult progressively following competitors in ranking. The tender regulations must at least indicate the location and description of the intervention to be carried out, the town planning, the texture, the types of service to manage. This, according to the legislator, in order to enable the level playing field among participants. The art. 144 of the code, in turn, see annex IXB, which provides, inter alia, that in the notice stating: i. the modalities with which participants demonstrate the availability of the necessary financial resources to cover the cost of the investment;
II. the minimum work to be contracted compulsorily to third parties;
III. the maximum price that the contracting authority intends to match;
IV. any minimum price that the dealer is obliged to pay for the creation and transfer of rights;
v. any fee payable to the contracting authority;
vi. the time limit for completion of the work and for the initiation of management;
VII. the maximum duration of the concession;
VIII. conditions of service management with respect to end users;
IX. the right or the obligation to establish the project company and its characteristics; Under subsection 6, art. 153, the notice must also specify: a) the most economically advantageous tender evaluation criteria and their relative weighting, and if this is impossible, their order of importance; These criteria must include, in addition to the provisions of art. 83, paragraph 1, of the code, even aspects: 1) the quality of the preliminary draft;
2) economic and financial value of the plan;
3) the content of the draft Convention;
b) accrual motivational criteria scores for each criterion. In evaluating the financial value of the plan's opportunto that the contractor pay special attention to economic burdens borne by the Government and/or the user (contributions from PA, management fees, prices). It seems appropriate that the invitation is also clearly stated that when verifying of conguita of the offer, administration reserves, in addition to the formal control of the affidavit of financial plan by the Bank (made solely on the basis of the data provided by the company), also the evaluation of merit about the appropriateness of the proposal, the correctness and validity of the elements supporting the plan and its fitness for purpose. (11) article. code 144, paragraph 3-bis, which paragraph 21-bis of article. 153 on PF expressly refers, provides that notices and its annexes, the contract and the financial plan, are "defined in such a way as to ensure an adequate level of financing of the work". Furthermore, pursuant to paragraph 3 ter, contained in art. 19, paragraph 1, point b), in d.l. 69/2013: "the notice may provide that the offer is accompanied by the Declaration signed by one or more banks of interest to finance the operation, also in consideration of the content of the outline contract and the financial plan". That provision, aimed at facilitating the possibility of subsidizing the works realized in PF, aroused many concerns of interpretation. First, with regard to the vincolativita ' of the obligation assumed, since there are no penalties for failure to comply with, and then also with regard to its effective range, considering the long time between the submission of tenders (based on the PF on the feasibility study) and allocation. It is clear that major changes may occur between these two moments in the content of the agreement as market conditions (which, for example, may not allow more determined interest rates or feasibility of specific end-user rates). Whereas the notice provides that option, though this should not be a mere expression of form, which results in legislating for participation, but should represent one of the criteria for evaluating the offer. What in particular, where this expression of interest fits in a competitive dialogue procedure or a restricted procedure with dialogue (such as that introduced by paragraph 3-bis). Paragraph 3-quarter, as amended by l. 98/2013 has introduced the possibility to provide for termination of the contract in case of non-signing of the loan agreement or in the absence of the subscription or placement of project bonds under art. 157, within a reasonable time limit set. It's not clear what are the parameters to be considered to determine the appropriateness of the term, however the legislator establishes a ceiling equal to twenty-four months from the date of approval of the final draft. Against such a resolution, the dealer will not be entitled to any reimbursement of costs, including those relating to the final design. However, if the work has the peculiarity to be a realization in excerpts, the notice may also provide that, in case of partial financing of the project and an excerpt technically and economically functional, the concession contract remains valid only for the part that regulates the construction and operation of the same excerpt functional. With regard to the identification of the "excerpt" technically and economically functional discretion left to the Administration appears too large, therefore, the concept may be "often a harbinger of many disputes of interpretation and litigation, to the extent that there are certain elements that anchor the functionality, especially, from a technical standpoint" as highlighted in the report of the authority of July 4, 2013, # 2. It would, therefore, appropriate that the identification of functional happen in advance excerpts in the definition of tender documents, possibly using those forms of consultation provided for concessions. In order to ensure the viability ' of the work, which is to facilitate investment and ensure the financial equilibrium of the concession, on December 6, 2011 d.l. n. 201 introduced the possibility to stipulate in the contract that the management of the dealer also extends to works or parts of works already carried out (article. 143 paragraphs 1 and 4). Through such handling anticipated the concessionaire could acquire from the very beginning of the concession report any revenues resulting from the influx of cash and reduce the payment of the financial market in order to obtain the liquidity necessary for the achievement of the intervention. In this regard, it is appropriate for the early management of functional does not produce the translation excerpts on the grantor of a significant part of the business risk and that the cash flow generated by the same are included in the business plan, and also taken into account for the purposes of determining the duration of the contract. It is believed, therefore, that the contractors should always indicate in the tender documents which are functional excerpts or pieces of work that may be subject to independent management or prior to completion of the work, even in respect of ancillary works even ' functionally related to those of the concession, placed at the service of the main ones. In paragraph 5, with the same purpose of pursuing the balance of economic and financial plan is then provided for the disposal of properties in the availability of private dealer administration as an alternative form of public aid. Methods of enhancement of goods shall be determined by the Board, with the approval of the project based on race or as part of the feasibility study in the case of tender organized in accordance with art. 153. The notice must state the expected duration of the concession, except that such term does not constitute one of the elements of evaluation of the economically more advantageous. The art. 143, paragraph 6, provides that this rule is not more than thirty years. The next paragraph 8 provides that this period may be extended, taking into account the yield, the percentage of expected price and the amount of work, as well as risks related to changes in market conditions. For concessions worth more than one billion euros, the duration can be set up to fifty years. For the purposes of determining the duration of a concession, seems certain to follow Yes than that specified in the 2014/23/EU Directive, that in recital 52, it states: "for longer than five years the duration should be limited to the period in which you can reasonably foresee that the dealer retrieves the investments made to carry out the work and services and receive a return on investment under normal operating conditions in the light of the contractual objectives by the dealer to meet requirements relating for example to the quality or the price to customers. The estimate should be valid at the time of the award of the concession. It should be possible to include initial and subsequent investments deemed necessary for the execution of the grant, in particular expenditure on infrastructure, copyrights, patents, material, logistics, hiring, training and initial expenses». It highlights, therefore, that for the purposes of determining the duration of the concession should take account of the complexity of the operation carried out and the total cash flow generated by the same, even if the transfer of risk takes place with the dealership agreement does not involve the certainty of full recovery of the sums invested. It seems appropriate to point out that, in order to a situation in which at the end of the contract the lessor intends to locate a new dealer, the tender for the selection of the new dealer should be made well in advance of the natural expiration of the concession. As for the additional content of the notice, should narrow down the following. The discipline does not indicate the deadline for the submission of tenders whose establishment falls, then, in the discretion of the contracting authority, in accordance with the thresholds provided for in art. 70 and art. 145 of the code, without prejudice to the general principle referred to in paragraph 1 of that article. 70, which requires Governments to take into account the complexity of the contract and performance of the time ordinarily required for drawing up tenders. In order to ensure a certain duration of the procedure, it is appropriate, as already pointed out, insert in the contract notice the contracting authority indicates the period within which the promoter (or competitors following ranking, questioned if slider) must submit to it, the acceptance of the amendments to the draft submitted for the purpose of entering into the contract. 6.4 the participation requirements art. 153, paragraph 8 of the code requires that individuals wishing to tender are in possession of the qualifications required by the regulations for the concessionaire, even associating or consorziando other parties, or through the institution of pooling, hold the requirements of art. 38. art. 95 of the regulations contains the rules governing participation, providing that the dealer who wants to carry out the work stipulated in the concession should be classified in accordance with art. 40 of the code, as well as art. 79, paragraph 7, of the rules of procedure. In any case, the dealer must comply with the following additional financial and technical-organizational requirements: a) turnover related to activities performed in the last five years preceding the publication of the notice not less than ten per cent of the investment planned for the intervention;
b) share capital of not less than one twentieth of the investment planned for the intervention;
c) carrying out over the last five years of related services that provided after surgery for an average amount of not less than five per cent of the investment planned for the intervention;
d) performance over the past five years by at least one service similar to that provided by the intervention for an average amount of at least two percent of the planned investment after the operation. In paragraph 2 of art. 95 of the Regulation it is envisaged that as an alternative to the requirements of subparagraphs c) and d), the dealer can increase the requirements a) and b) to the extent fixed by invitation to tender, however between 1.5 times and 3 times. In the case of RTI or consortia the requirements contained in a)-d) must be owned collectively by each of the components of the group or of the Consortium and each of them must have a dimension of not less than 10%. 6.5 the contents of offers With respect to the content of the tenders, in accordance with art. 153, paragraph 9, the competitor must have: a) a preliminary draft drawn up in accordance with the requirements in the tender regulations;
b) a draft Convention;
c) a business plan, attested by a Bank, a company of services consists of Bank and entered in the list of intermediaries under art. 106 of the banking law or by an audit firm. The economic and financial plan should indicate, among other things, the amount of the costs incurred for the preparation of tenders, including the intellectual property rights mentioned in art. 2578 of the civil code; This amount cannot exceed 2.5% of the value of the investment, as illustrated by the feasibility study place based on race;
d) specification of the characteristics of the services and their management;
e) a document with which account of the preliminary involvement of one or more banks in the project. The economic and financial plan must be drafted in such a way as to make it possible to assess the cost effectiveness of an investment project and its ability to repay its debt and paying interest on risk capital. In accordance with art. 143, paragraph 7, of the code, shall provide for the specification of the residual value of the investment, net of expected annual depreciation, as well as any residual value without suspension at the end of the concession, where the plan does not envisage any economic-financial balance investments and associated service management. This assumption occurs in the event that the level of tariffs charged to the consumers and the level alleged demand for services are not sufficient to cover the depreciation of the entire investment, in the period of concession expected. The business plan should be drawn up taking account of the following: (12) a) timeline (the year of commencement of construction, year of construction, year of the beginning of the end-of-year management concession, etc.);
b) investment costs and their temporal distribution;
c) operating margin, or operating income, expenses, utilities, prices, etc.;
d) Finance: interest rate, credit lines, interest rate margins, bank charges, public contribution, etc.;
e) taxation method and depreciation rates;
f) legal reserve, register, etc.;
g) average time of payment and receipts. The legalization of the business plan, "consists in the evaluation of economic and financial elements, such as project expenses and settlement of sources of funding, and verification of the ability of the plan to generate positive cash flows and the consistency of the data with the draft Convention" (article 96, paragraph 4, of the rules of procedure). The affidavit therefore represents a consistency check of the economic and financial structure of the intervention. In addition, the activities of sworn translations, when made by a financial institution, it can't be considered as a legal commitment by the by the same the next time funding for promoters; the legislature, in fact, art. 153, paragraph 9, of the code, it separated the activities of sworn translations from the preliminary involvement of one or more lenders in the project. In accordance with art. 96, paragraph 5, of the rules of procedure, the assessment of economic and financial elements for the purposes of certification must cover at least the following aspects: a) price that the tenderer intends to ask the contracting authority;
b) price that the tenderer intends to be the contracting authority for the establishment or transfer of rights;
c) fee that the contestant intends to match the directors;
d) time limit for completion of the work and for the initiation of management;
e) expected duration of the concession;
f) financial structure of the transaction, including the analysis of financing profiles ' of the operation in connection with the debt financial plan;
g) costs, revenues and cash flow generated by the project with reference to rates. In the absence of a clear specification in regulation of the constituent elements of the economic and financial plan, it is believed that at least those items that need to be assessed in the process of certification should be contained in the plan. 6.6 discipline guarantees according to art. 153, paragraph 13, States that the offers are accompanied by provisional guarantee under art. 75, paragraph 6, of the code, which covers the non-signing of the contract for fact attributable to the successful tenderer. In the case of design changes, the procedure expressly provides for the right of the promoter not to accept the award of the contract and, therefore, if they use, the contracting authority is not entitled to examine the above deposit. Tenders must be accompanied by an additional deposit equal to 2.5% of the value of the investment that is used to finance the promoter if they don't agree to make the changes required by the project approval phase. Like any expectations, and also required the final deposit under art. 113 of the code as a guarantee of performance for jobs. It should also be guaranteed at the time of beginning of the management of the work, the exact fulfilment of all contractual obligations to be in accordance with the methods referred to in art. 113 as far as 10% of the annual cost of operating practice. Failure to submit this additional guarantee, by express provision, constitutes a serious breach of contract. (13) The final deposit on articles under art. 113 of the code and the security to ensure that penalties related to the management of the work referred to in paragraph 13 of article. 153 of the code are, Therefore, distinguished by subject, amount and time of release. 6.7 award criteria The award criteria laid down in art. 153, paragraph 4, is that of the economically most advantageous tender, under art. 83 of the code. The authority has already stepped in on the method of evaluation of the economically more advantageous for the PPP with the determination May 20, 2009, n. 4, "guidelines on the use of the criterion of the economically most advantageous tender in procedures provided for by art. 153 of the code of public contracts ' (14), referred to. In addition to the provisions of art. 83, paragraph 5 of art. 153 provides that, among the assessment parameters, there are three additional elements in consideration: a) technical (design and construction);
b) economic profile (yield, cost of operation and maintenance, durability, economic and financial value of the plan);
c) impact on users (usability of the opera, accessibility to the public, timely completion of the work, prices to be applied and its update method, contents of the draft Convention). 6.8 the award and conclusion of the contract in accordance with paragraph 10 of article. 153, once received the offers, the administration shall: a) to evaluate the offers received, even if only one bid;
b) draw up a list and nominate promoter the person who has submitted the best tender;
c) engaging in preliminary draft approval submitted by the promoter, with the modalities indicated in art. 97 (including conference services). The promoter shall carry out the necessary design changes for approval of the project, as well as all legal requirements, including for the purpose of environmental impact assessment, without which this entails additional compensation;
d) proceed directly to the conclusion of the licence, if the project does not require design changes;
and if you do not agree to change the promoter) project, requiring progressively subsequent competitors ranking acceptance of changes to the project. Regarding possible changes that may be required to the promoter, it is considered that, as formulated the standard and to ensure conditions of equality between the candidates, we cannot require you to make changes that alter materially the proposal selected. In order to indivuare the changes substantially altering the proposal, it is believed to be to refer to all those project changes and proposed intervention capable of producing the effects described by the new directive 2014/23/EU. Without prejudice to the limit, if, at the time of adoption of the preliminary draft, are prescribed changes such as to result in an increase in construction costs of the intervention, the contracting authority must verify, before conclusion of the contract of concession, that there is still a degree qualification requirements on the part of the subject. Where the promoter needs to own requirements to a greater extent than those initially required, it is believed that he can integrate your company with new subjects that provide additional requirements. It is believed that the engraved with paragraph 10, point c) on ' the burden of the promoter to make changes for approval of the project "and refers to a situation in which the promoter is interested in entering into the contract. At that stage, therefore, the promoter is obliged to make design changes requested without any compensation, for approval of the project. The only voice that, in accordance with paragraph 10, does not pose any additional compensation is that design costs inherent in the changes required and the costs incurred for the preparation of tenders. That means, of course, that any increase in costs for the execution of works or for the management of services, will be subject to adjustment of the economic and financial plan, as referred to in paragraph 3 (a)) of the provision in question. If, instead, the promoter is no longer interested in the conclusion of the contract, he may refuse to make the required changes. As for the eventual sliding of the ranking, you must be aware that it isn't aimed at identifying a different proposal, but another competitor willing to align its proposal with that of the promoter, including changes not accepted by the promoter. In this case, the contracting authority must verify the suitability of qualification requirements of a competitor to the new project before conclusion of the concession. It should be pointed out that the contract may take place only after approval of the preliminary draft. The problem then arises when neither the promoter nor the other competitors agree to the required design changes. In that regard, it could envisage two interpretations: a) Administration cannot further proceed;
b) the directors may acquire the preliminary draft, edit and adapt the economic and financial plan, approve and announce a new race. It is considered preferable to the second hypothesis because the work is in the public interest, as posted in the three-year program and it does not appear that the regulation Budvar a ban for such an acquisition. The contracting authority should, however, include in the contract a clause concerning the right to acquire the project. It is appropriate that, should it be the case where neither the promoter nor the other competitors accept design changes, the Administration, before tendering, deepen the reasons which prompted the contestants to reject changes, because this could be indicative of something suitably rewarding to the market; in that case, you're going to possibly change the project and the economic and financial plan. 7. The procedure to double race and the right of first refusal (paragraph 15) paragraph 15 of article. 153 of the code provides that the contracting authority, in alternative to the provisions of subparagraph 3 a) and b) of the same article, may-following approval of the preliminary draft-proceed as follows: a) publishes a contract notice, placing tender based on preliminary plan approved and piano economic-financial, adjusted, where necessary, as a result of changes to the project demands when approving and other contract terms offered by the promoter;
b) If no offers have been submitted, the contract is awarded to the promoter;
c) where one or more bids have been submitted, the promoter may, within 45 days from the communication of the contracting authority, bring its proposal to the highest bidder, clinching the contract; in this case, the contracting authority shall refund to the highest bidder at the expense of the promoter, the costs of participation, to the fullest extent under paragraph 9, third period, art. 153 of the code;
d) where the promoter, within 45 days, does not adapt its proposal than the bidder identified in the race, the latter is granted the public contract and the contracting authority shall refund to the promoter, at the expense of the successful tenderer, costs incurred to the extent indicated in paragraph 9, third period, art. 153 of the code. The double race could surpass those criticality highlighted for procedure a unique race represented by the limits that may be inherent in the chance to introduce modifications (surveying) to the project provided by the promoter. In fact, unlike the single match, the preliminary draft is put back to a competitive screening, although the promoter starts from a position of advantage, which is represented by the right of first refusal (and this may discourage the participation of other entities or altering behaviors). Participants in the second procedure must submit a tender consisting of technical-economic improvement proposals in the preliminary draft and the Convention, as well as a business plan, which takes into account the changes required in the offer. The standard does not clarify whether the second race should attend even the promoter. Because the promoter has already made its offer, it would seem that it cannot be excluded that eventuality. This is also why it is expected that most economically advantageous deals valued absence than the promoter, leaving then intimated that the preliminary draft prepared by the promoter is already an offer within the race. Even in the case of the second race the award criterion must be that of the economically most advantageous tender. Bid evaluation criteria must be such as to allow comparison with the preliminary draft. Competitors, including the promoter, must pay both the provisional deposit, is the deposit of 2.5%, since, if the promoter does not exercise the first refusal, be entitled to reimbursement of costs to be borne by the successful bidder, whereas if the sponsor exercises a right of first refusal, shall pay, by the contracting authority, to the highest bidder, the costs of participation in the tendering procedure, which may not exceed this amount. Therefore, since the procedure is not expected to attend the second race promoter, deposits made by the latter in support of the offer in the first race should be eventually integrated into the amount, where the economic value of the preliminary draft second race place was greater than the estimated value in the feasibility study place of the first race and it needs to be also extended its term of validity in order to cover with warranties the entire period of effectiveness of tenders in the second race. Concerning the verification of eligibility for participation in the double race procedure, it is necessary that the promoter, who is not taking part in the next race, becoming the proprietor of a right of first refusal, have the dealer's requirements since the first race in the second phase. With regard to the requirements of a general nature it is evident that these should be held at all stages in which the tendering procedure; While economic and financial requirements and technical-organizational, can occur two hypothesis: 1) when approving the project presented by the promoter you have not made any substantive changes and, therefore, requirements for participation remain those specified in the notice, the possession of which by the promoter should be verified at the end of the operations of the first race; 2) the project needs changes that include requirements additional to those initially requested and, if so, where the promoter agrees to modify the project, it is believed that the verification of new requirements going to run even before the proclamation of the second race, which-as mentioned-the promoter will participate. Where the promoter needs to own requirements to a greater extent than those initially required, it is believed that it can integrate your company with new subjects that provide additional requirements. This interpretation is for the sake of efficiency and smooth running of the administrative action, since where the promoter, whose project was approved and placed on the basis of the second race, does not possess the requirements of participation could be completely nullified the experiment of the second race (which occurs when there is an offer valued economically more advantageous), resulting in an expenditure of time and resources. Of course, legal checks remain firm that the Administration must take on the successful bidder upon conclusion of the concession contract. 8. The conduct of private procedures (paragraphs 16-18) The paragraph 16 of article. 153 allows the use of procedures that use the project finance in relation to posted jobs annual list under art. 128, for which the Administration has proceeded to the publication of the notice within six months. In such a case, within four months from that deadline, allowed individuals who meet the requirements of the licensee, pursuant to paragraph 8 (vd. par. 6.4), to compensate for the inertia of the public administration with its own initiative. It is believed that the private may access the feasibility study prepared by the Administration for the inclusion of the work in the proceedings of programming, in order to formulate the its proposal. The proposal must have the contents of the offer pursuant to paragraph 9 of article. 153: a preliminary draft, a draft Convention, a financial plan attested (see par. 6.5.) the proposal must be accompanied by a deposit in accordance with art. 75, and demonstration of subjective requirements documentation and the commitment to pay the further deposit of 2.5% of the value of the investment in the case of a call for competition. Within sixty days from the deadline for the possible submission of proposals by private individuals, even if only one proposal has been received, the contracting authorities shall publish a notice containing the basis on which we proceed to the evaluation of the same, with the terms of art. 66 or 122 of the code. It is believed that publish the notice by the contracting authority, following submission of proposals by private entities, go understood in a cogent. What also in view of the fact that the proposals of individuals all have as their object the implementation of measures already envisaged in the three-year programming and included among the works to be realized with the participation of private capital. It allowed the submission of proposals elaborated and presented according to the criteria indicated in the notice, as well as the presentation of new proposals, within ninety days of the publication of the notice. After that, within six months must evaluate the proposals received and once the most responsive to public interest, checked on the qualifications of the applicant, may adopt one of the following procedures: a) if the preliminary draft need to be changed, if the conditions laid down in art. 58, paragraph 2 of the code, is called a competitive dialogue, placing it based on the preliminary draft and the economic and financial plan;
b) if the preliminary draft does not need to be changed, the Administration with the approval of the preliminary draft presented by the promoter, shall banish a concession, pursuant to art. 143, placing the project based on race and urging the promoter;
c) Alternatively, proceed under subsection 15 c), d) e), f) of art. 153 of the code (the second race examined in paragraph 7), placing the same race-based project and the business plan, and inviting the race promoter. Contestants must meet the requirements for the dealer and are required to submit the provisional guarantee 2% return, pursuant to art. 75 of the code, and the further deposit of 2.5% of the value of the investment necessary to reimburse the expenditure incurred by the promoter that is awarded in the procedure referred to in paragraph 16 (a)). Otherwise explicitly provided for the case in point a), c sub b) and sub procedures), or for those where no changes are required, the promoter has the right of first refusal, according to the modalities provided for in paragraph 15. The person who presented the proposal (namely the promoter in instances sub b) and sub c)) must necessarily participate, under penalty of forfeiture on the part of the contractor. If the project needs changes you can use the competitive dialogue, provided that it the conditions. This engraved contained in existing rule under consideration suggests an alternative to the competitive dialogue, but the arrangement does not clarify which one. You could, in that case, consider that the contracting authority to modify the preliminary draft, adapting to the changes required in approving, arrange financial and business plan indicates a race under art. 143 of the code. 9. The conduct of private procedures (paragraphs 19-21) economic operators may also submit to the contracting authority concerning the execution of works or works of public utility, including leasing, not present in the three-year plan or programming tools adopted by them on the basis of existing legislation. Traders may submit such proposals are those identified in paragraph 21, namely: a) subjects who meet the requirements of the concessionaire (analysed in paragraph 5.4);
b) parties under art. 34 and in art. 90, paragraph 2, point b) (15) of the code, any associated or associates with funding bodies and service providers;
c) persons performing Professional activities in financial, insurance, via technical-operational, management and consultancy in the field of public works or public utilities and services to the community, which in three years participated significantly to the realisation of specific nature and amount at least equal to that of the proposal (article. 96 of the rules of procedure). The proposal includes a preliminary draft, a draft Convention, the economic and financial plan attested and specification of the characteristics of the service and management. The proposal must be accompanied by their own declarations relating to the requirements referred to in paragraph 21, the security provided for in art. 75 and the commitment to pay a deposit to the extent of the amount of 2.5% in the case of the call for competition. Bail ex art. 75 it is aimed at ensuring the seriousness and reliability of supply, possess the requisites by the proposer and the participation of the latter to the next stages of the race. Since the proposal was founded on the initiative of the economic operators it is considered important that the project be given what are the benefits for the Administration and territory and what are the reasons for the realization of the same based on the PF. The contracting rate within three months, the public interest of the proposal. To this end, the contracting authority may invite the applicant to make the preliminary draft the changes needed for its approval. If the applicant does not make the requested changes, the proposal cannot be assessed as being of public interest. The preliminary draft, possibly modified, it is placed in the three-year programming under art. 128 and it's place in approval with the terms indicated in art. 97. In this phase we proceed, then, to Conference Services after which further changes may be required, for its final approval. Even in this case, if the changes were not made to the project cannot be approved. As already reported in the Analyze phase of the programming, it would be good if in the process of adoption of the preliminary draft are secure forms of user engagement and residents affected by the project. In addition, the Administration should verify whether there are elements which do they prefer the choice of Ppp compared to traditional contract, analyzed in section 5.2. The preliminary plan approved and ' place-based competition for the award of a grant, to which it invited the proposer, who renamed the promoter. In the notice, the contracting authority may ask competitors, including the promoter, the submission of any changes to the project. The notice specified that the promoter can exercise the right of first refusal. Competitors, including the promoter, who meet the requirements of the concessionaire (described in paragraph 6.4), must submit a bid containing a draft Convention, the economic and financial plan attested, the specification of the characteristics of the service and management, as well as any changes to the preliminary draft. Competitors must pay the guarantees referred to in paragraph 13 of article. 153 (see paragraph 6.6). The award criterion is that of the economically most advantageous tender (described in paragraph 6.7). If the promoter was awarded the race can exercise, within 15 days of the notification of the award the right of first refusal. In this case it should undertake to fulfil contractual obligations under the same conditions offered by the successful tenderer, pouring in the latter the amount of expenditure for the preparation of the offer within the limits of 2.5% of the value of the investment (paragraph 9 of the aforementioned art. 153). If the promoter does not exercise the right of first refusal is entitled to receive from the contractor a sum not exceeding 2.5% of the value of the investment in reimbursement for the preparation of the proposal. 10. Project financing services 10.1 The service concession while the project financing in the public works sector is governed in detail in art. 153 of the code, the project finance services industry code, art. 152, paragraph 3, we only provide that ' the provisions of this chapter shall apply, mutatis mutandis, to services, with the terms laid down by regulation ". These methods are contained in art. 278 of regulation. As already mentioned, the case for granting facilities located in "minimal" discipline Code that is embodied in the prediction of a standard closing, contained in art. 30 of the code, which States that, without prejudice to the application of specific disciplines that provide more broad forms of competition, the choice of the dealer must take place in accordance with the principles contained in the Treaty and the General principles relating to public contracts and, in particular, the principles of transparency, adequate publicity, non-discrimination, equal treatment, mutual recognition, proportionality, after informal race to which are invited at least five contestants If there are in that number qualified subjects in relation to the object of the concession, and predetermination of selective criteria. The State, therefore, waiting to know how will be transposed Directive 2014/23/EU, the code States that grants are handled through an informal with at least five operators. Such sparse information must, however, be read in the light of the rules outlined by the European Commission, especially in the interpretative communication for the award of contracts not or only partially covered by the directives on public contracts (2006/C 179/02) and in the interpretative communication on the application of Community law on public procurement and concessions to institutionalised public-private partnerships (2008/C 91/02). In communications, the Commission focuses primarily on the obligation of transparency which they kept the administrations, which consists in ensuring, for the benefit of any potential tenderer, a degree of advertising that allows the opening of service contracts to competition, as well as control over the impartiality of award procedures (cf. Court of Justice, judgment of December 7, 2000, case C-324/98, considered # 62). The principle of transparency is closely related to that of non-discrimination, as undistorted competition conditions and requires that licensors make, with appropriate means, their intention to resort to the award of a concession. According to the European Commission, such forms of advertising must contain the information required in order for potential dealers are able to assess their interest in participating in the procedure, such as the indication of the selection criteria and allocation of scores, the object of the concession and of expected performance by the concessionaire. The above art. 278 introduces and discipline-alongside the traditional model of service concessions cd. "such public initiative", which finds its own rules in art. code 30-the hypothesis of service concession to private enterprise, where it is the individual who may submit to the competent authority its proposal. 10.2 the proposals from private analysis of art. 278 of the regulation shows that the legislator had intended to dictate a discipline of PF in services as much as possible similar to that suggested for jobs, creating a template not overly dissimilar from that already started and experimented in the field of public works. Paragraph 1 of article. 278 provides that proposals for the purpose of custody in PF of service concessions contracts should include a feasibility study, a draft Convention, a business plan, certified by the persons specified in art. 153, paragraph 9, of the code, a specification of the characteristics of the service and of management, as well as an indication of the items referred to in art. 83, paragraph 1 of the code (assessment criteria for the economically most advantageous tender) and the guarantees offered by the promoter to the contracting authority; the proposals also indicate the amount of expenses incurred in their susceptibility to the extent referred to in art. 153, paragraph 9, last sentence, of the Act (2.5% of the value of the investment, as illustrated by the feasibility study). Therefore, the main difference compared to the case of proposals by private individuals for jobs lies in the fact that the basis of the proposal by private persons there is a feasibility study and not a preliminary draft. According to paragraph 2, if the Administration makes use of the faculty under art. 271 of regulation-and, I mean, the faculty to approve the annual programme for the acquisition of goods and services relating to the next financial year-proposals is allowed with reference to services not indicated in the work programme. If so, evaluate the proposals within six months of receipt and may adopt, as part of its programs, feasibility studies deemed of public interest; as provided for by art. 153, paragraph 19, of the code for works concessions, this adoption does not determine any rights of the applicant to compensation for services performed or management services. The formal procedures following the submission of the proposal can be broken down into two different phases: the first phase aimed at assessing the feasibility of the proposal and a second time to the selection of the concessionaire. The activity which held the Administration in assessing the proposal is identified in paragraph 3 of art. 278. The feasibility of the proposals submitted is evaluated by contracting authorities, in terms of functionality, usability, accessibility to the public service, efficiency, management and maintenance cost, the duration of the concession, the rates to be applied, the method of updating the same, the economic value of the plan and of the content of the draft Convention; It is verified, in addition, the absence of elements which impede their implementation. If there are more proposals, they should be evaluated comparatively in accordance with the principles laid down in art. 30, paragraph 3, of the code or of the principles of transparency, adequate publicity, non-discrimination, equal treatment, mutual recognition, proportionality. As regards the selection phase of the subcontractor of the service, il comma 4 dell'art. 278 stipulates that the Government shall issue a call informal pursuant to art. 30, paragraph 3, of the code, with race-based the proposal presented by the promoter that must be invited to participate. Therefore, from the combined provisions of articles 30, paragraph 3, of the code and 278, paragraph 4, of the regulation shows that the identification of the concessionaire is via an informal contest which should be invited at least five competitors and within which selection criteria must be determined by the contracting authority, of course. The same paragraph 4 continues ruling that, when choosing the concessionaire, the promoter can bring its proposal to the one judged by more convenient, resulting in such a case the custodial parent of the concession. It is, therefore, provided a right of first refusal in favour of the promoter attributed to the mere fact of having provided for the submission of the proposal. Especially for large amounts of concessions it seems appropriate that the contracting authority instead of resorting to an informal contest, you autovincoli with a "guarantee", such as that represented by the restricted procedure. Even assuming, as is done for the award of concessions pursuant to art. 30 of the code is without prejudice to the application of the "specific disciplines that provide more broad forms of protection of competition". Finally, with an expected closing, paragraph 5 of art. 278 provides that all matters not expressly governed by the standard code and regulation shall apply by analogy, namely those relating to the PF for jobs, previously reviewed. 10.3 the opportunity of programming art. 278 extends, therefore, the service sector a chance, expected for jobs in art. 153, paragraph 19 of the code, to submit proposals for the award of service concessions outside the annual programme optional ex art. 271 of regulation. The reference standard is, in this respect, article. 271, paragraph 1, of the regulation, according to which ' each contracting authority can approve each year an annual programme for the acquisition of goods and services for the following financial year. " For services and supplies, contrary to what happens with jobs, not supposed to a double degree of programming (annual and triennial), but a single act that covers a time span rather limited (one year), however, optional. With regard to the content of the annual programme, article. 278 regulation draws, mutatis mutandis, the provisions of art. 128, paragraphs 2, 9, 10, 11 and last period of the code. Among the provisions referred to does not appear however the prediction referred to in that paragraph 2 of art. Code 128 (second period), according to which, in the acts of the contracting authority shall identify with priority the needs that can be met through work can be financed with private capital, as susceptible to economic management. As already pointed out in paragraph 4, it is considered appropriate, for reasons of transparency, corruption prevention and control of public expenditure, which also in services will undertake careful planning. In the absence of programming, however, the opportunity given by art. 278 of regulation, by entrusting the management of a service concession arrangements on the basis of a proposal from the private sector, involves the electromagnetic interferences in the activities proper to the Administration on the assessment of public utility and service priorities, without which, inter alia, ensuring the transparency of choices made in relation to public intervention, which the Institute mainly programming responds. 10.4 the proponent's requirements in services unlike for jobs, art. 278 of the regulation does not specify what the requirements that the promoter must possess for the submission of feasibility studies. If, on the one hand, the need seems to not suspecting that the promoter must satisfy the General requirements outlined in art. 38 of the code, however, the issue appears unresolved concerning economic and technical requirements, which, in any case, by analogy with the provisions for jobs, should be proportionate to the proposal. The lack of prior determination could create problems where consider, first, that the promoter is given a right of first refusal in the next race for the award of the concession and, secondly, that, as for jobs, the affidavit of financial plan by a bank does not imply a legal commitment to the next financing and therefore does not constitute a guarantee of reliability, the economic proposal. Of course the contracting authority in making the race promoter's proposal must identify the participation requirements of competitors. At this stage, to ensure the level playing field among competitors even the promoter, possibly by associating with other enterprises, must meet the requirements for the dealer. This issue is already addressed and clarified by the authority for works concessions (see determination October 4, 2001, # 20 (16)). 11. rules governing enforcement of the contract 11.1 the legal regulations outlined in the discipline Code and regulation for concessions made by PF, while it is detailed to the profiles about foster care, not just as regards the execution of the works and for the subsequent phase of management of the work. (17) Indeed, article. 152 of the code, to invoke the rules applicable to PF, sets out only those relating to custody. However, given that the procedures regulated by art. 153 lead to the award of a concession of works (or services), it considers should also apply the provisions of art. 142 ff. about the runtime, which refer entirely to the provisions of the code and the rules for the procurement of works and services. The discipline contained in art. Rule 142 then not only the relationship between grantor and concessionaire, as well as between the latter and a third contractor, as in accordance with art. 146, the contractor can: a) require the concessionaire to outsource contracts corresponding to a percentage of not less than 30% of the overall value of the work subject of the concession. The minimum rate must appear in the contract notice and in the concession contract;
b) inviting candidates to State in their tenders the percentage, if any, of the total value of the work subject of the concession, intending to contract out to third parties. The art. 142 also distinguishes cases where the concessionaire is a contracting authority or a private entity. In the first case, works contracts entrusted by the dealer, similarly to what is provided for the granting, apply all provisions of the code, unless expressly waived. In the second case, the paragraph 4 of art. 142 provides that licensees are required to apply for contracts contracted out the art. 149-151 and by analogy 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. With regard to other aspects of the discipline, 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). The art. 141 establishes, in paragraph 8, in custody cases construction grant, grant the responsible supervisory proceedings at all stages of work, checking on compliance with the Convention. Consequently, article. 10) (r) of the regulation provides that "proceedings Manager functions of supervision over the completion of the work in the public works concession, verifying compliance with contract». 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, should 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. With reference to the construction management, art. 130 of the code of public contracts and 147 of regulation requires the activity of construction management is concluded by the contracting authorities. These provisions are considered applicable to concessions, not having been no derogation in specific discipline dictated for concessions (under which the provisions of the code, unless they are waived in chapter II dedicated to them-article 142, paragraph 3). For submission to third parties by the dealer which is of the nature of the contracting authority, they will be required to appoint the Director of works in view of the reference contained in art. 142, paragraph 3, with all the provisions of the code that are not expressly waived. Similarly it is believed that such a right should be exercised also by the concessionaire which is not a Contracting Authority considered the fiduciary nature of the construction manager. Because the grantor's interest in the proper execution of the project in its unitarieta ' should adopt specific measures to check the consistency and quality of the work entrusted by the dealer to third undertakings, what can be achieved through the expression of approval of the project manager appointed by the retailer or through the provision of a specific organ with supervisory powers. Before analysing the content of the Convention, a fundamental document for the regulation of the relationship between grantor and concessionaire, it seems necessary to emphasize that the d.l. 69/2013 has amended art. 143, paragraph 5, stipulating that "at the time of delivery of the work the subject allowing claims to have all the permissions, licenses, authorizations, permits, clearances or other acts of consensus however denominated provided by law and that such acts are legitimate, effective and valid." The norm, evidently aimed at speeding up the execution phase, but does not specify what are the acts referred to, being deliberately open, both to take account of the differences by type of business and future regulatory changes in this regard. Therefore, most of the content of the Declaration explicit it seems appropriate to focus on the modalities with which should be provided in the Declaration. Appears, first, that the Declaration should be signed by the grantor. It is also appropriate that the same are marked the extremes with which such authorizations were issued and, as far as possible, annexed to the Convention. In order to reduce possible subsequent litigation, would eventually require that the Declaration is signed by the dealer, who States that, to the best of his knowledge, the job does not require additional permissions. 11.2 the Convention The fundamental act which regulates relations between grantor and concessionaire is the concession contract or "Convention", in which they must be precisely regulated relations between grantor and concessionaire for the duration of the concession. Please note that the draft Convention is a key document for the entrustment of concession must be present in competitors ' offers in cases of single match and double race, in the proposals of the former paragraphs 16 and 19 private concessions, as well as in the proposals by private persons for services. The contract represents the set of mutually legal obligations undertaken by the parties, i.e. the balance between the various interests involved; It must, therefore, take note of all the economic, managerial and administrative components of the operation, balanced in such a way as to ensure the financial equilibrium. The art. 115 of the regulation identifies which schema punctually minimum content of the concession contract: a) conditions relating to the processing by the dealer of the project of the work to be carried out and the terms of approval by the contracting authority;
b) an indication of functional characteristics, technical and architectural engineering, opera and the level of services required;
c) the powers reserved to the contracting authority, including the criteria for oversight work by the head of the proceedings;
d) specification of annual amortization of investments;
and work to be contracted) the minimum compulsory third parties as provided in the contract or specified in the original offer;
f) testing procedures;
g) the terms and conditions for the maintenance and management of the work performed, as well as the grantor's powers of control over the management thereof;
h) the penalties for non-compliance of the concessionaire, as well as the grounds for withdrawal of the licence and the procedure of its Declaration;
s) methods of payment of the price, also in accordance with art. 143, paragraph 5, of the code; (18) l) the criteria for determining and adjusting the price that the dealer can collect from user charges for services rendered;
m) an obligation on the licensee to acquire all the approvals are required beyond those already obtained when approving the project;
n) methods and terms of performance by the concessionaire of any charges, including the payment of fees or benefits of different kinds;
o) insurance guarantees required for the planning, construction and operation;
p) the terms, conditions and any charges relating to the delivery of the work to the contracting authority at the end of the concession;
q) in the case referred to in art. 143, paragraph 5, of the code, the terms of any entering into possession of the property before acceptance of the work;
r) the business plan, time management and the related investments cover throughout the period chosen;
s) the consideration for the residual value of the investment without suspension at the end of the concession. (19) since what differentiates the concession from the contract is the allocation of risk between administration and auto dealerships, it is clear that the Convention should be present the elements necessary for a clear risk allocation — rights and obligations of the grantor and the grantee. Remember, among other things, that the method of allocation of risks are a key element in accounting for the operation for the purposes of public budgets. Considering that in the concession, at your own risk of the contract, adding market risk, the Convention should clearly be regulated the matters for which different trends than those estimated at the time of signing the contract could lead to a revision of the same, in favour of the concessionaire or by Volkswagen, and those that will determine a reduction or increase of the revenue (and then, losses or gains more) for the dealer. In particular, with respect to the need for rebalancing the business plan, the Convention must establish what the extraordinary events not attributable to the dealer's responsibility to influence the construction and operation of the work, as possible delays in authorisation processes, lessor's breach, regulatory changes and force majeure, resulting in delays in schedule. With regard to the situations which may result in benefits in favour of the contractor should be inserted clauses of "benefit sharing" that get benefits as a result of, for example, supervened technological innovations or variants that determine construction cost reductions or changes in the tax regime, in a good way for the dealer. The art. 143, paragraph 8, of the code States that the changes made by the contractor to the conditions that led to the contract basis business plan, as well as legislative and regulatory standards establishing tariff mechanisms or affect the balance of the financial plan, its necessary revision, to be implemented through restatement of the new equilibrium conditions even through the extension of the deadline of the concessions. Paragraph 8-bis, introduced by art. 19, paragraph 1, letter a) of law No. 98 of 2013 stated that "this Convention defines the conditions and the basic conditions of the business plan, whose variations are not attributable to the concessionaire, should lead to a change in the balance of the plan involve its revision. The Convention also contains a definition of financial equilibrium that refers to indicators of profitability and debt repayment capacity, as well as the verification procedure and timing of obligations». Therefore, under subsection 8-bis it is necessary that the agreement specifies the assumptions and conditions of economic and financial balance, through reference to quantitative parameters, objectively determined and can be determined, and reported to the entire life of the concession. Among the conditions and assumptions should be including data related to the amount of investment, the cost of construction, unit prices and tariffs, their method of upgrade, the duration of the concession, the value of the public contribution. In addition, the Convention should define clear and measurable financial balance by referencing the value of the indicators of profitability, such as internal rate of return (Irr) of capital adequacy, the shooting of the project or the net present value (NPV). As regards the ability to repay debt, you must refer to indicators such as the DSCR (Debt Service Cover Ratio, ratio of period cash flow available for debt service, annual or semestrial, and service the debt, capital and interest, for the same period), or FROM LLCR (the Loan Life Cover Ratio the ratio between the net present value of cash flows over the duration of the funding and the present value of the debt). In the absence of that revision of PEF the concessionaire could terminate the contract. In this regard, there is a chance that in the Convention are specifically identified property rights following the withdrawal of the concessionaire pursuant to art. 143 paragraph 8, calling the attention of contractors on the need that, even at that stage, takes heed that remains a proper allocation of risk between the private partner and administration. Therefore, these rights resulting from the withdrawal cannot take on a dimension and a content that clear the risks assumed by the concessionaire. Regarding the possibility of introducing changes to the concession contracts, directive 2014/23/EU, art. 43, lists the cases in which it is possible to modify the concessions without a new tendering procedure. Generally speaking, a distinction shall be made between situations where substantive changes are made to the initial grant and circumstances involving changes of as little impact on the value of the contract (recitals 75 and 76). A new award procedure it is always required when intervening changes of the concession concerning in particular its scope or content of the rights and mutual obligations of the parties; conditions which, if met before and included in the tender documents, could lead to a different outcome of the procurement procedure. In cases where unforeseen circumstances intervene ex ante, however, "despite a reasonable and diligent preparation for the initial award by contracting authorities or contracting entities, taking into account the means at its disposal, the nature and characteristics of the specific project, good practices from the field and the need to ensure a proper ratio between the resources invested and in preparing the award and its predictable» so according to the criterion of reasonable diligence, you may proceed to the revision of the financial business plan, without conducting a new award. However, the revision is subject to certain conditions: a) the unpredictability of circumstances occurred; b) a chance to modify the content of the contract without affecting the general nature of the concession; c) in the case of concessions awarded by the contracting authority for the purpose of carrying out an activity other than those referred to in annex II of the cd. Special, any increase in value not exceeding 50% of the value of the initial grant. You can proceed to a revision of the concession contract, irrespective of the financial value: a) in the case of amendments in the contract; b) If changes were envisaged in the tender documents, in clear, precise and unambiguous terms, which may include price review clauses, or options; c) for additional works or services which were necessary and were not included in the initial grant when it is not conceivable economically or dealer technical changes such as the requirement of interchangeability or interoperating between existing services or facilities or equipment because Act for the Administration considerable disruption involving the duplication of costs. In case of later changes anymore, this limitation applies to the value of each change. Subsequent changes must not be designed to circumvent the guidelines in the directive. A further change hypothesis is that where it is necessary to change the concessionaire in the circumstances related to those already provided for by Italian law art. 159 of the code for the takeover, which is the resolution of the concession for the fact of the concessionaire (succession as a result of mergers, restructuring, acquisition or insolvency) and art. 51 on subjective events of the successful tenderer. With particular reference to the takeover in accordance with art. 159 of the code, it stresses the need that the deadline for the nomination of the company replacing the part of the project's funding agencies, stipulated in the contract or if no assigned by the Administration, both reasonable, having regard also to the complexity of the preliminary activities required for this designation. In addition, pending the enactment of the Decree of the Ministry of infrastructure referred to in paragraph 2 of art. 159 of the code, the contract must punctually specification criteria and modalities of implementation of the takeover. Finally, as regards the substitution of the concessionaire at the end of the expiration of the concession seems appropriate, as it must be for service contracts, the call for the new expectation is prepared well in advance, so you don't have to predict the need for transition periods of custody then. If there is a fee for the residual value of the investment suggests this is charged to the new dealer and that the actual payment of rent is a prerequisite for the takeover. The delay in payment can justify the continuation of the activity of the previous handler, which should be suitably remunerated, as set forth in the Convention to manage, and it can't be because of an extension of the duration of the concession for the new custody beyond the deadline set in the tender notice.
Approved by the Council at its meeting of September 23, 2015 Roma, September 23, 2015 President: Canton Deposited at the Secretariat of the Council on October 14, 2015 Secretary: Esposito (1) in this respect, it is recalled that paragraph 111-great art. 1 December 13, 2010 law # 220 ("Disposizioni per la formazione del bilancio annuale e pluriennale dello Stato (legge stability 2011)") provides that "the service contracts and other acts carried out by the regions and local authorities that are elusive internal stability pact rules are null and void" and to subsection 111-ter provides that ' if the regional jurisdictional Sections of the Court of Auditors to ensure that compliance with the internal stability pact It was artificially achieved by an incorrect attribution of income or expenditure the relevant budget chapters or other elusive, they impose, administrators who have implemented elusive Stability Pact rules acts inside, the conviction to a fine of up to ten times the benefits perceived charge at the time of Commission of evasion and at the head of the economic and financial, a financial penalty up to 3 monthly payments of compensation, net of tax and benefit systems ". (2) For the selection of external designers, please refer to the information contained in the February 25, 2015, n determination. 4, «guidelines for the award of services related to architecture and engineering». (3) for a detailed analysis of possible risks please refer to section 3.1. (4) for a complete analysis for the application of the instrument of public sector comparator, refer to the study carried out by the authority, together with the Technical project finance unit, published in September 2009 for: "analysis of evaluation techniques for choosing the model of implementation of section: the Public Sector Comparator and value analysis," available at the following link: http://www.avcp.it/portal/public/classic/Comunicazione/Pubblicazi oni/StudiRicerche/PSC/(5) the legislation does not foresee distinctions on the content feasibility study for project size, with this meaning that the feasibility study to be placed based on race must necessarily contain all the components stated in the aforementioned paragraph 2, regardless of the value of the work. In «guidelines to complete feasibility studies», by January 2013, ITHACA has suggested that considering "that the studies prepared with purpose ' ordinary ... might prove the programmatic level simplified and that necessarily those places based on race should follow the provisions of paragraph 2 (full level), at the regional level might be interesting to introduce an intermediate zone (synthetic layer) basic level but less analytical, more descriptive of the feasibility study complete, for example in the case of use of regional contribution» or for projects of amount. (6) the solution not to proceed with the surgery should not constitute a real alternative at this stage, as the documentation to be race-based and, therefore, having already topped the poll of the programming phase, about the usefulness of the intervention. (7) art. 22, paragraph 1, of the regulation provides that: "the calculation summary of expenditure is made, in respect of the works or jobs, by applying to the amount of the corresponding parametric price characteristics inferred from standardized costs determined by the Observatory. In the absence of standardized costs, applying parameters derived from similar interventions made, which is drawing up a schedule of quantities of maximum». (8) for the calculation of fees to be based on race, see Yes mentioned determination # 4 of February 25, 2015, "guidelines for the assignment of services related to architecture and engineering». (9) the opening present in the paragraph cited appears consistent with the provisions of the new directive 2014/23/EU, where art. 30 ' on the award of concession contracts» does not provide for any specific procedure for award; What for: "normally the concessions are complex arrangements of long duration with whom the dealer takes responsibility and risks traditionally undertaken by contracting authorities and contracting entities and falling normally within the purview of the latter. For that reason, without prejudice to compliance with this directive and the principles of transparency and equal treatment, should be left to contracting authorities and contracting entities a wide flexibility to define and organize the selection procedure of the concessionaire "(Recital 68). (10) For such a scheme she started from a document written by Epec for procurement procedures laid down by Community directives (see Utfp-Epec, a guide to PPPs. Good practice manual, Italian version, January 2011). (11) In order to assess the reliability of the PEF, the Administrative Board shall exercise a discretionary power, thus only for manifesta illogicita ' or incongruita ' or misrepresentation (Cons. St., section V, February 8, 2011, n.
843). (12) the list revived and reworked by Utfp-Technical project finance unit, UTFP: 100 questions and answers, 2nd Edition, may 2014. (13) For the application of the guarantees laid down in articles. 75 and 113 of the code, please refer to the assessment July 29, 2014, n. 1, «Problems concerning the use of provisional and final deposit (arts. 75 and 113 of the code). " (14) For the application of the guarantees laid down in articles. 75 and 113 of the code, please refer to the assessment July 29, 2014, n. 1, «Problems concerning the use of provisional and final deposit (arts. 75 and 113 of the code)» (15) these are the «society of engineering societies of capital referred to in chapters V, VI and VII of title V of book v of the civil code which is in the form of cooperative society referred to in chapter I of title I of book v of the civil code that does not meet the conditions referred to in point a) perform feasibility studies, research, consulting, planning or direction of the works, evaluations of the technical and economic appropriateness ' or environmental impact studies. The charges related to the aforementioned professional activities shall apply the supplementary contribution if required by legislation governing the Pension Fund by category where each signatory of the project references by virtue of compulsory affiliation to the relevant professional register. This contribution must be paid pro rata to the respective Cases according to statutory orders and regulations ". (16) on this point see also the Judgment of the plenary session of the State Council April 15, 2010, # 2155 (17) In the absence of clear rules, contractors must comply with legal content and can comply with, even for the purpose of reducing litigation and cost of interventions, from the guidelines supplied by the authority. We highlight two important guidance documents for the implementation of contracts for PF: joint paper Reeds, Anci, Abi, Universita ' degli Studi di Roma "Tor Vergata", Legance, guidelines for the preparation of concession and management agreements, January 2014, and Epec-European Ppp Expertise Center, Managing PPPs during their contract life. Guidance for sound management, March 2014. (18) article. 143, paragraph 5, requires in turn: "the contracting authority, after analysis of cost-effectiveness, may provide in the financial plan and the Convention, as a price, the supply of property or right of use of real property in their availability or dispossessed whose use or exploitation is necessary to the economic-financial balance of the concession. The terms of use or exploitation of immovable property shall be defined by the contracting authority in conjunction with the approval in accordance with article 97 of the draft based on race, and they constitute one of the conditions that determine the economic-financial balance of the concession. In the case of tender organized in accordance with article 153, these terms of use or exploitation are defined by the contracting authority as part of the feasibility study. " (19) a possible model contract is contained in the cited document Reeds et. At. and Epec, and Utfp, public-private partnership for the construction of hospitals.
A sample contract works concession, March 2008.
The authority intends to proceed with the adoption of a standard agreement following the adoption of this determination and the transposition of directives on public procurement and concession.