Art. 184. Project companies

1. The call to tender for the award of a concession for the realization and/or management of an infrastructure or new service of public utility must provide that the successful tenderer shall be entitled, after the award, to set up a project company in the form of a share capital company or a limited liability company, including a consortium. The call to tender shall indicate the minimum amount of the company’s share capital. In the case of a tenderer consisting of more than one party, the bid shall indicate the shareholding of each party. The above provisions shall also apply to the tender set forth in Article 183. The company thus established shall become the licensee, replacing the successful tenderer in the concession without the need for approval or authorization. Such replacement does not constitute the assignment of a contract. The call to tender can also provide that the establishment of the company is an obligation for the successful tenderer.

2. The works to be performed and the services to be provided by the companies governed by paragraph 1 shall be realized and provided by them, even if they are entrusted directly by the above companies to their shareholders, as long as they have the prerequisites established by current legislation and regulations. The above is without prejudice to the legislative, regulatory and contractual provisions that provide for obligations to award the work or the services to third parties.

3. As a result of the replacement set forth in paragraph 1, which does not constitute an assignment of the contract, the project company becomes the original licensee and substitutes the successful tenderer in all relations with the granting authority. In the case of the payment of a price by the public administration while the work is being performed, the shareholders of the company shall be jointly liable with the project company with respect to the administration for any refund of the contribution received. Alternatively, the project can provide the public administration with bank and insurance guarantees for the refund of amounts paid as part of the price while the work is in progress, thus releasing the shareholders. The above guarantees shall cease on the date of the issue of the testing certificate for the work. The concession agreement shall establish the manner in which any transfer can be made of the shares of the project company, without prejudice to the fact that the shareholders who participated to satisfy the qualification prerequisites must participate in the company and guarantee, within the above limits, proper compliance with the licensee’s obligations until the date of issue of the testing certificate for the work. The entry of the project company in the share capital and the disinvestment of the shareholdings by banks and other institutional investors who did not participate to satisfy the qualification prerequisites can, however, take place at any time.
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