Art. 188. Availability contract

1. The successful tenderer for the availability contract shall be paid the following consideration, subject to monetary adjustment according to the contractual provisions:

a) an availability fee, to be paid only when the work is effectively available; the fee shall be proportionally reduced or cancelled in periods of reduced availability of the work or its unavailability due to maintenance, defects or any other reason that is not among the risks to be borne by the contracting authority in accordance with paragraph 3;

b) any payment of a contribution while the construction work is being performed, however not to exceed fifty percent of the construction cost for the work, in the case of transfer of ownership to the work to the contracting authority;

c) a possible transfer price, parameterized in relation to the fees already paid and any contribution while the construction work is being performed set forth in clause b) above, at the residual market value of the work, to be paid at the end of the contract, in the case of the transfer of ownership to the work to the contracting authority.

2. The successful tenderer assumes the risk of construction and the technical management of the work for the period it is made available by the contracting authority. The contract shall determine the manner in which risks are allocated among the parties, which might result in changes in the fees due for events impacting the project, realization or technical operation of the work, deriving from intervening binding rules or measures of public authorities. Unless in the case of different contractual provisions and without prejudice to what is set forth in paragraph 5, the risks of construction and the technical management of the work deriving from the lack of or delayed issue of authorizations, opinions, clearance and any other act of an administrative nature shall be borne by the contracting authority.

3. The call to tender shall be published in the manner set forth in Article 72 or Article 36, paragraph 9, depending on the amount del contract, using performance specifications as the basis of the tender procedure prepared by the contracting authority which indicates, in detail, the technical and functional characteristics that the built work must have and the manner for determining the reduction of the availability fee, within the limits set forth in paragraph 6. The tenders must contain a feasibility study corresponding to the characteristics indicated at the time of the tender and be accompanied by the guarantees set forth in Article 93; the successful tenderer must provide the security defined in Article 103. Starting from the date of availability for the successful tenderer, security shall be due to guarantee the penalties related to the breach of or imprecise compliance with all of the contractual obligations related to the availability of the work, to be provided in the amount of ten percent of the annual operating cost and in the manner set forth in Article 103; the failure to provide such security shall be material contractual breach. The contracting authority shall evaluate the tenders submitted using the criterion of the most economically advantageous offer, determined based on the best quality/price ratio. The call to tender shall indicate the criteria, in the order of importance attributed to them, on the basis of which the comparative evaluation shall be made of the different tenders. The costs related to any expropriations shall be considered in the economic framework of investments and financed in the context of the availability contract.

4. The provisions of this Code on the general requirements for participation in the tender and the qualification of the economic operators shall apply to the availability contract.

5. The final project, the executive project and any variants while the work is in progress shall be prepared by the successful tenderer; the successful tenderer is entitled to introduce any variants aimed at greater cost savings for the construction or management, in compliance with the technical-economic feasibility study approved by the contracting authority and the current and supervening rules and measures of public authorities. The final project, the executive project and variants while the work is in progress shall be approved to all effects by the successful tenderer, upon communication to the contracting authority, which can object within thirty days for cause if they do not comply with the performance specifications, as well as, if prescribed, to the competent third-party authorities. The risk of rejection or delayed approval by the competent third-party authorities of the designs and any variants shall be borne by the successful tenderer. The contracting authority can attribute the successful tenderer with the role of expropriating authority in accordance with the Uniform Text set forth in DPR No. 327 of 8 June 2001.

6. The testing activity, to be done by the contracting authority, shall verify the realization of the work in order to ascertain precise compliance with the specifications and the mandatory rules and provisions, and can propose to the contracting authority, only for such purpose, modifications, variants and the reconditioning of the work performed, or, as long as the essential functional characteristics are ensured, the reduction of the availability fee. The contract shall specify, also as protection of the lender institutions and the holders of the securities issued in accordance with Article 186 of this Code, a limit on the reduction of the availability fee, and after such limit has been exceeded the contract shall be terminated. Fulfilment of its commitments by the contracting authority shall in any case be conditioned on the positive outcome of the control of the realization of the work and its being made available in the manner provided by the availability contract.