Art. 165. Risk and economic-financial equilibrium in the concessions
1. In the concession contracts defined in Article 3, paragraph 1, clauses uu) and vv), most of the operating revenue of the licensee derives from the sale of services provided to the market. Such contracts involve the transfer to the licensee of the operating risk defined by Article 3, paragraph 1 clause zz) concerning the possibility that, in normal operating conditions, variations related to costs and proceeds that are the object of the concession shall impact the equilibrium of the financial-economic plan. The variations must, in any case, be capable of significantly impacting the current net value of the licensee’s total investments, costs and revenue.
2. The financial-economic equilibrium defined in Article 3, paragraph 1, clause fff) represents the premise for the proper allocation of the risks set forth in paragraph 1 above. For the sole purpose of achieving the above-mentioned equilibrium, at the time of the tender the contracting authority can also establish a price which consists of a public contribution or the assignment of real property. The contribution, if functional to maintaining the financial-economic equilibrium, can be made by means of rights of enjoyment to real property available to the contracting authority whose use is instrumental and technically related to the licensed work. In any case, the payment of the price, in addition to the value of any public guarantees or additional financing mechanisms borne by the public administration, cannot exceed forty-nine percent of the cost of the overall investment, inclusive of any financial charges.
3. The stipulation of the concession contract can only take place after approval of the final project and the presentation of suitable documentation concerning the financing of the work. In order to facilitate the granting of the financing for the work, the calls for tender and the relative annexes, including, as appropriate, the draft contract and the financial-economic plan, shall be defined in such a way as to ensure adequate levels of bankability, such term meaning the availability in the financial market of resources proportionate to needs, the sustainability of such resources and the fair return on the invested capital. For concessions to be awarded using a restricted procedure, the call to tender may provide that the contracting authority may organize, prior to the expiration of the term for the submission of bids, preliminary consultation with the economic operators invited to submit bids, in order to verify the lack of the critical nature of the project on which the tender is based from a financing standpoint. After the consultation it may adjust the acts of the tender, updating the term for the submission of bids, which cannot be less than thirty days starting from the relative communication to the parties concerned. The amount of the tax exemptions set forth in Article 18 of Law No. 183 of 12 November 2011, and Article 33 of Law Decree No. 179 of 18 October 2012, converted, with modifications, by Law No. 221 of 17 December 2012, as well as the amount of public contributions, where provided, cannot be the object of the consultation.
4. The call for tender can provide that the bid be accompanied by a declaration signed by one or more lender institutions manifesting an interest in financing the transaction, also in consideration of the content of the draft contract and the financial-economic plan.
5. The contracting authority shall provide in the call to tender that the concession contract establish the termination of the contract in the case of the failure to stipulate the loan agreement, as well as in the case of the failure to place bonds issued by the project companies set forth in Article 185, within a reasonable period established by the call to tender, however not to exceed eighteen months, starting from the date of stipulation of the concession contract. The licensee shall continue to be entitled to find the liquidity necessary for the realization of the investment through other forms of financing provided by current law, as long as stipulated within the same term issued by operators set forth in Article 106 of Legislative Decree No. 385 of 1° September 1993. In the case of termination of the contract in accordance with the first clause and paragraph 3, the licensee shall not be entitled to any reimbursement of the expenses incurred, including those relating to the final project. The call to tender can also provide that in the case of the partial financing of the project, and in any case for a portion of it that is technically and economically functional, the concession contract shall remain effective limited to the part that governs the realization and management of such functional portion.
6. The occurrence of facts not attributable to the licensee that impact the equilibrium of the financial-economic plan can result in its revision, to be implemented by the redetermination of the conditions of equilibrium. The revision must allow the permanence of the risks transferred to the economic operator and the financial-economic conditions of equilibrium relating to the contract. For the purposes of the protection of public finance closely linked to maintaining the above risk allocation, in cases of works of State interest or that are financed with a State contribution, the review is subject to the prior evaluation by the Consulting Unit for the implementation of the guidelines for the regulation of services of public utility (NARS). In the other cases, the contracting authority is entitled to submit the review to the prior evaluation of NARS. In the case of failure to agree on the rebalancing of the financial-economic plan, the parties can withdraw from the contract. The licensee shall be reimbursed the amounts set forth in Article 176, paragraph 4, clauses a) and b), with the exclusion of the charges deriving from the early dissolution of contracts for hedging the risk of fluctuation of the interest rate.
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