Art. 194. Award to a general contractor

1. By means of a single contract to a general contractor, the contracting authority can award to a party having adequate organizational, technical-implementation and financial capability the realization of the work using any means, in compliance with the needs specified in the final project prepared by the contracting authority and on which the tender is based, in accordance with Article 195, paragraph 2, against consideration paid in all or in part after the completion of the work.

2. The general contractor shall provide for:

a) the preparation of the executive project and the administrative technical activities necessary for the contracting authority to approve it;

b) the acquisition of land. The delegation set forth in Article 6, paragraph 8 of DPR No. 327 of 8 June 2001, in the absence of a licensee, can be granted to the general contractor;

c) the execution of the works using any means;

d) the pre-financing, in whole or in part, of the work to be realized;

e) if necessary, the determination of the manner in which the work shall be managed and the selection of the operators;

f) the indication to the contracting authority of the plan of awards, expropriations, supplies of material and all other elements useful for preventing criminal infiltration, in the manner established by the latter and the relevant competent bodies.

3. The contracting authority shall provide for:

a) the approval of the executive project and any variants;

b) the appointment of the site supervisor and testers, as well as high surveillance of the realization of the work, ensuring constant monitoring of the work, including through a permanent committee composed of its representatives and representatives of the contracting party;

c) the testing the works;

d) the stipulation of specific agreements with the competent bodies on safety as well as the prevention and repression of crime, aimed at the prior verification of the operational program for the work in view of the subsequent monitoring of all phases of execution of the works and the parties performing it, in any case providing for the adoption of protocols of legality that have specific clauses providing for the undertaking, by the successful tenderer, to denounce any attempts at extorsion, with the possibility of evaluating the behavior of the successful tenderer for purposes of the subsequent admission to restricted procedures of the same contracting authority in the case of breach of such requirements. The requirements with which the safety agreements must comply shall be binding for the successful tenderers and the successful firm, which must transfer the relative obligations borne by the companies concerned for any reason in relation to the performance of the work. The monitoring measures for the prevention and repression of attempts at mafia infiltration include the control of financial flows related to the realization of the work, including those relating to resources that are entirely or partially to be borne by the promoters in accordance with Article 183 and those deriving from the implementation of any other means of project financing. The costs relating to financial monitoring shall be included in the flat rate set forth in paragraph 20.

4. The general contractor shall be responsible with respect to the contracting authority for the correct and timely execution of the work, according to the following provisions of this Chapter. The relationship between the contracting authority and general contractor shall be governed by the rules of Part I and Part II, which represent implementation of Directive 2014/24/EU or by the rules of Part III, the acts of the tender and by the provisions of the Italian Civil Code regulating the contract.

5. Article 63 shall not apply to variants of the project awarded to the general contractor, which shall be subject to the rules set forth in Part II, which represent implementation of Directive 2014/24/EU, or by the rules of Part III and by the following provisions:

a) the general contractor shall be responsible for any variants required to correct defects or integrate omissions of the executive project prepared by it and approved by the contracting authority, whereas the contracting authority shall be responsible for any variants induced by force majeure or intervening prohibitions of law or third-party entities, or which are in any case requested by the contracting authority;

b) other than the cases set forth in clause a), the general contractor can propose to the contracting authority planning variants or technical modifications that it considers to be useful for reducing the time or cost for the realization of the works. The contracting authority can refuse to approve the variants or technical modifications if they do not comply with the technical specifications and needs of the contracting authority, specified in the project on which the tender is based, or which could in any case result in a worsening of the functionality, durability, maintainability and safety of the works, or result in increased costs to be borne by the contracting authority or delay of the completion deadline.

6. The general contractor shall provide for the uniform performance of the activities set forth in paragraph 2 directly or, if constituted by more parties, by means of the project company set forth in paragraph 10. The relationship of the general contractor with third parties are relationships governed by private law to which this Code does not apply, except for what is provided in this Chapter. The provisions set forth in Part I and Part II shall apply to the general contractor who is also the contracting authority or contracting entity, as well as Title I which represents implementation of Directive 2014/24, or the provisions set forth in Part III.

7. The general contractor can perform the awarded work directly, within the limits of the qualification it holds, or by entrusting third parties. The third parties entrusted with the work of the general contractor must in turn have the qualification prerequisites provided by Article 84, and they can sub-contract the work within the limits and on the conditions provided for contractors of public works. Article 105 shall apply to such sub-contracts.

8. The award to the general contractor, as well as the award and sub-contracting of the work of the general contractor, shall be subject to anti-mafia controls in the manner provided for public works.

9. Before making any payment to the general contractor, the contracting authority shall control, including the issue of any progress reports, proper compliance with the general contractor’s contractual obligations to its subcontractors: if it appears that the general contractor is in breach, the contracting authority shall apply a deduction on subsequent payments and shall make direct payment to the subcontractor, as well as apply any different sanctions provided for in the contract.

10. When the general contractor is composed of different parties, it shall establish a project company in the form of a company, including a consortium, a share capital company or a limited liability company to perform the work. The company shall be governed by Article 184 and by the following provisions of this Article. In addition to the parties that compose the general contractor, the financial, insurance and operational technical institutions previously indicated at the time of the tender can have stakes in the company. The company, composed as above, shall succeed the general contractor in the relationship without any authorization, except for anti-mafia controls and without the subentry constituting an assignment of the contract. Unless the contract provides otherwise, the parties that compose the general contractor shall remain jointly liable with the project company with respect to the contracting authority for the successful performance of the contract. Alternatively, the project company can provide the contracting authority with bank and insurance guarantees for the repayment of the amounts received while the work is being performed, thus freeing its shareholders. Such guarantees shall terminate on the date of issue of the testing certificate for the work. The minimum capital of the project company shall be indicated in the call to tender.

11. The contract shall establish the manner in which any shares of the project company are transferred, except that the shareholders who hold stakes to satisfy the qualification prerequisites must participate in the company and guarantee, within the limits of the contract, proper compliance with the obligations of the general contractor, until the work has been realized and tested. The entry in the project company as well as the divestment of holdings by banking institutes and other institutional investors who have not participated to satisfy the qualification prerequisites can, however, take place at any time. The contracting authority cannot oppose assignments of receivables made by the general contractor in the case set forth in Article 106, paragraph 13.

12. The call to tender shall determine the share of the value of the work that can be realized by the general contractor through advance payment using its resources and the timeframe and manner of payment of the price. The balance of the share of the consideration withheld for such purpose must be paid upon the completion of the work. To finance the above share, the general contractor or the project company can issue bonds, upon the authorization of the supervisory authorities, including in derogation of the limits set forth in Article 2412 of the Italian Civil Code. The contracting authority shall guarantee the payment of the bonds issued, within the limits of its debt towards the general contractor which appears from the progress reports issued, or from the final account or from the testing certificate for the work. The bonds guaranteed by the contracting authority can be used to create the bank or insurance reserves provided by current legislation. The manner in which the guarantee set forth in the third clause of this paragraph operates shall be established by a decree of the Minister of the Economy and Finance, together with the Minister of Infrastructures and Transportation. The guarantees provided by the State in accordance with this paragraph shall be inserted in the list annexed to the budget of the Ministry of the Economy and Finance.

13. The receivables of the project company, including those constituted by the licensees in accordance with Article 184 with respect to the contracting authority, can be assigned in accordance with Article 106, paragraph 13. The assignment can regard receivables that are not yet liquid and enforceable.

14. The assignment must be stipulated by means of a public act or authenticated private instrument and must be served on the assigned debtor. The act that is served must expressly indicate whether the assignment is made with respect to a loan that is without recourse or with limited recourse.

15. The contracting authority shall pay the amount of the services provided and pre-financed by the general contractor by the issue of a payment certificate enforceable upon the expiration of the pre-financing in accordance with the contractual provisions. With respect only to the receivables set forth in this paragraph that are assigned in exchange for loans that are without recourse or with limited recourse, the issue of the certificate of payment constitutes definitive acknowledgment of the credit of the lender assignee. No objection can be made to the assignee of payment of the share of the pre-financing that is acknowledged deriving from the relationship between the debtor and the assignor creditor, including settlement with receivables deriving from compliance with such contract or with any other receivable with respect to the assignor general contractor.

16. The call to tender shall indicate the final date of payment of the receivables acknowledged to be final in accordance with paragraph 15, in all cases of the lack of or delayed completion of the work.

17. For awards for which there are receivables acknowledged as being final in accordance with paragraph 15:

a) if the guarantees set forth in Article 104 have already been reduced or the reduction is expressly provided by the guarantee that is given, the final acknowledgment of the receivable shall not be operative if the guarantee is not restored and the provision of reduction deleted from the guarantee;

b) paragraph repealed by legislative decree no. 56/2017 in force from 20-5-2017

18. The general contractor shall provide the guarantees set forth in Article 104.

19. The specifications shall provide, among others:

a) the manner and timeframe, during the phase of the development and approval of the executive project, of the preparatory services related to the work and the site preparation, if authorized;

b) the manner and time schedule for the payment of accruals of the consideration due to the general contractor for the services performed prior to the initiation of the work, relating in particular to the design activities and services set forth in clause a).

20. The contracting authority shall indicate a flat rate in the call to tender that is not subject to bid price discounts, corresponding to the overall amount of the work according to the preliminary valuations that the general contractor must include in the bid made at the time of the tender, to be used to implement suitable measures aimed at achieving the objectives of prevention and repression of crime and attempts at mafia infiltrations, in accordance with paragraph 3, clause d) and Article 203, paragraph 1. In the project on which the tender is based, in accordance with Article 195, paragraph 2, that is prepared by the contracting authority, the amount corresponding to such rate shall be included in the available amounts of the economic framework, and a preliminary report shall be included that accompanies the project, indicating the articulation of the above measures, as well as a cost estimate. Such estimate shall be carried forward to the subsequent planning stages. Technical variations to implement the measures in question, that may be proposed by the general contractor at any stage of the work cannot be a reason for increased costs to be borne by the contracting authority. If the final project is produced due to the promoter’s initiative, the latter shall prepare a similar articulation of the measures in question, with the relative indication of costs, not subject to bid price discounts, and inserted in the amounts available to the administration. The provisions of this paragraph shall also apply, to the extent compatible, in cases of awards through concession.
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