Art. 183. Project financing

1. For the realization of public works or works of public utility, including work related to structures dedicated to recreational boating, included in programming instruments formally approved by the contracting authority on the basis of current law, including Port Plans, that can be financed in whole or in part with private capital, the contracting authorities can, as an alternative to an award through concession in accordance with Part III, can award a concession basing the tender on the feasibility study, by publication of a call to tender aimed at the presentation of bids that contemplate the use of resources that are wholly or in part borne by the bidders. In any case, for infrastructures relating to in-line works, the relative proposals must be included in the programming instruments approved by the Ministry of Infrastructures and Transportation.

2. The call to tender shall be published in the manner set forth in Article 72 or set forth in Article 36, paragraph 9, depending on the value of the work, basing the tender on the feasibility study prepared by the contracting authority. The feasibility study to be used as the basis for the tender shall be prepared by staff of the contracting authority having the necessary subjective prerequisites needed to prepare it according to the different specializations involved with the multi-disciplinary approach of the feasibility study. If there are no suitably qualified personnel available, the contracting authorities can entrust the preparation of the feasibility study to third parties, chosen through the process provided by this Code. The costs related to the assignment of activities to third parties can be included in the economic framework of the work.

3. The call to tender, in addition to the content provided by annex XXI, shall specify:

a) that the contracting authority has the possibility to request the chosen promoter, set forth in paragraph 10, clause b), to make modifications to the final project submitted by it that occurred during the phase of approval of the project, including for the purpose of issuing maritime State concessions, if necessary, and that in such case the concession shall be awarded to the promoter only after the latter’s acceptance of the project modifications as well as the consequent adjustment of the economic-financial plan;

b) that in the case of the promoter’s refusal to modify the final project, the administration shall be entitled to progressively request the bidders who follow in the ranking to accept the modifications to make to the final project submitted by the promoter on the same conditions proposed to the promoter which it did not accept.

4. The contracting authorities shall evaluate the tenders submitted with the criterion of the most economically advantageous tender identified based on the best quality/price ratio.

5. In addition to what is provided by Article 95, the review of the proposals shall extend to aspects related to the quality of the final project submitted, the economic and financial value of the plan and the content of the draft agreement. With respect to structures dedicated to recreational boating, the review and evaluation of the proposals shall also be made with reference to the greatest suitability of the chosen initiative to satisfy public interests in the tourism and economic development of the area concerned, landscape and environmental protection, and navigational safety.

6. The call to tender shall indicate the criteria, according to the order of importance attributed to them, on the basis of which the comparative evaluation shall be made among the various proposals. The publication of the call to tender, in the case of structures intended for recreational boating, shall satisfy the obligation of public notice provided for the issue of the State maritime concession.

7. The regulations of the call to tender, expressly referred to in the call to tender, shall indicate, in particular, the location and description of the intervention to be realized, the urban planning use, the consistency, and the type of service to be operated, in such a way as to allow the proposals to be submitted based on homogeneous conditions.

8. Only parties having the prerequisites for the licensees shall be allowed to participate in the tender, including in association or as a consortium with other parties, without prejudice to the lack of reasons for exclusion set forth in Article 80.

9. The tenders must contain a final project, a draft agreement, an economic-financial plan certified by a credit institute or by a service company established by such credit institute and registered with the general list of financial intermediaries, in accordance with Article 106 of Legislative Decree No. 385 of 1° September 1993, or by an auditing firm pursuant to Article 1 of Law No. 1966 of 23 November 1939, as well as specification of the characteristics of the service and operations, and shall report on the preliminary involvement of one or more lender institutions in the project. The financial-economic plan, in addition to providing for the reimbursement of the expenses incurred to prepare the feasibility study on which the tender is based, shall include the amount of the expenses incurred to prepare the bids, including for the rights to the creative works set forth in Article 2578 of the Italian Civil Code. The overall amount of the expenses set forth in the above clause cannot exceed 2.5 percent of the value of the investment, as can be inferred from the feasibility study on which the tender is based. In the case of structures to be used for recreational boating, the final project must establish the qualitative and functional characteristics of the work and the framework of the needs to be satisfied and the specific services to be provided, must contain a study with the description of the project and the information needed to identify and evaluate the main effects that the project might have on the environment, and must be integrated with the specific requests made by the Ministry of Infrastructure and Transportation through its decrees.

10. The contracting authority:

a) shall examine the tenders received within the term indicated in the call to tender;

b) shall prepare a ranking and appoint as promoter the party that has submitted the best bid; the appointment of the promoter can also be made when there is only one bid;

c) shall approve the final project submitted by the promoter, in the manner indicated in Article 27, including for the purpose of the subsequent issue of the State maritime concession, if necessary. In such phase the promoter shall be responsible for making the project modifications required for the approval of the project, as well as all legal requirements, including for the purpose of the environmental impact assessment, without this resulting in any additional compensation, nor increase of the expenses incurred to prepare the tenders indicated in the financial plan;

d) when the project does not require project modifications, it can proceed directly with the stipulation of the concession;

e) if the promoter does not agree to modify the project, it is entitled to progressively request the subsequent tenderers in the ranking to accept the modifications to the project submitted by the promoter in accordance with the same conditions proposed to the promoter which it did not accept.

11. The stipulation of the concession contract can only occur after the positive conclusion of the approval process for the final project and acceptance of the project modifications by the promoter, or by the different successful tenderer. The issue of the State maritime concession, if necessary, shall be made based on the final project, prepared in conformity with the approved feasibility study.

12. If a party other than the promoter is awarded the concession, the promoter shall be entitled to the payment, by the successful tenderer, of the expenditure set forth in paragraph 9, third clause.

13. The tenders shall be supported by the guarantee set forth in Article 93 and by additional security established by the call to tender in the amount of 2.5 percent of the value of the investment, as inferred by the feasibility study on which the tender procedure is based. The successful tenderer must provide the final security set forth in Article 103. Starting from the date of commencement of the service, the licensee must pay security to guarantee the penalties related to the lack of compliance with or breach of any contractual obligations related to operating the work, to be provided in the amount of 10 percent of the annual operating cost and in the manner set forth in Article 103; the failure to provide such security shall be a material contractual breach.

14. If necessary, the provisions set forth in Decree No. 327 of the President of the Republic of 8 June 2001 and subsequent modifications shall apply.

15. The economic operators can present proposals to the contracting authorities related to the realization in concession of public works or works of public utility, including structures dedicated to recreational boating, not included in the programming instruments approved by the contracting authority based on current law. The proposal shall contain a feasibility study, a draft agreement, the financial-economic plan certified by one of the parties set forth in paragraph 9, first clause, and the specification of the characteristics of the service and operations. In the case of structures to be used for recreational boating, the feasibility study must establish the qualitative and functional characteristics of the work and the framework of the needs to be satisfied and the specific services to be provided, must contain a study with the description of the project and the information required to identify and evaluate the principal effects that the project might have on the environment, and must be integrated with the specific requests made by the Ministry of Infrastructure and Transportation by its decrees. The financial-economic plan shall include the amount of the expenses incurred to prepare the proposal, including for the rights to creative work set forth in Article 2578 of the Italian Civil Code. The proposal shall be accompanied by the self-certifications related to the prerequisites set forth in paragraph 17, the security set forth in Article 93, and the commitment to provide security in the amount set forth in paragraph 9, third clause, in the case the tender procedure is called. The contracting authority shall evaluate, within the mandatory term of three months, the feasibility of the proposal. For such purpose, the contracting authority can request the tenderer to make modifications to the feasibility study required for its approval. If the tenderer does not make the modifications requested, the proposal cannot be assessed positively. The feasibility study, which may be modified, shall be included in the programming instruments approved by the contracting authority based on current law, and shall be approved in the manner provided for the approval of projects. The tenderer must make any further modifications requested at the time of approval of the project; in the lack therefore, the project shall be considered as not having been approved. The approved feasibility study shall be the basis of the tender, to which the tenderer is invited to participate. In the call to tender the contracting authority can request the tenderers, including the proponent, to present any variants to the project. The call to tender shall specify that the promoter can exercise its preemption right. The tenderers, including the promoter, must possess the prerequisites set forth in paragraph 8, and must submit a tender containing a draft agreement, the financial-economic plan certified by one of the parties set forth in paragraph 9, first clause, the specification of the characteristics of the service and its operation, as well as any changes to the feasibility study; clauses 4, 5, 6, 7 and 13 shall apply. If the promoter is not the successful tenderer, it can, within fifteen days from the communication of the award, exercise the preemption right and become the successful tenderer if it declares that it undertakes to comply with the contractual obligations on the same conditions offered by the successful tenderer. If the promoter is not awarded the tender and does not exercise its preemption right, it is entitled to the payment, to be borne by the successful tenderer, of the amount of the expenses to prepare the proposal, within the limits indicated in paragraph 9. If the promoter exercises its preemption right, the original successful tenderer shall be entitled to payment, by the promoter, of the amount of the expenses incurred to prepare the offer within the limits set forth in paragraph 9.

16. The proposal set forth in paragraph 15, first clause, can regard, alternatively with respect to the concession, all public-private partnership agreements.

17. The proposals set forth in paragraph 15, first clause, can be submitted by parties having the prerequisites set forth in paragraph 8, as well as by parties having the prerequisites to participate in tenders for public contracts, including for design services that may be associated or in consortiums with the lender institutions and the operator of the service. The realization of public works or works of public utility shall be included among the sectors allowed that are set forth in Article 1, paragraph 1, clause c-bis) of Legislative Decree No. 153 of 17 May 1999. The chambers of commerce, within the scope of social utility and the promotion of economic development that they pursue, can join in the submission of proposals for the realization of the public works set forth in paragraph 1, without prejudice to their decision-making autonomy.

18. To ensure adequate levels of bankability and the involvement of the banking system in the transaction, the provisions of Article 185 shall apply, to the extent compatible.

19. Limited to the cases set forth in paragraphs 15 and 17, the parties that submit proposals can withdraw from the composition of the proponents at any stage of the procedure until publication of the call to tender, as long as such withdrawal does not result in the lack of the prerequisites for qualification. In any case, the lack of prerequisites by individual parties shall result in the exclusion of such parties without affecting the validity of the proposal, on the condition that the remaining members have the prerequisites needed for qualification.

20. In accordance with Article 2 of this Code, with respect to structures dedicated to recreational boating, the regions and autonomous provinces of Trento and Bolzano shall adapt their rules to the principles set forth in this Article.