Art. 3. Definitions

1. For the purposes of this Directive, the following definitions apply:

a) “contracting authorities” means the State public administrations; the local public authorities; the other non-economic public authorities; the bodies governed by public law; the associations, the unions, the consortia, whatever called, formed by one or more such authorities

b) “central government authorities” means the contracting authorities listed in Annex III and their successor entities;

c) “sub-central contracting authorities” means all contracting authorities which are not central government authorities;

d) “bodies governed by public law” any body, even of corporate law, whose non-mandatory list is contained in Annex IV:

1) it is established for the specific purpose of meeting needs in the general interest, not having an industrial or commercial character;

2) it has legal personality;

3) its activity is financed, for the most part, by the State, by other public local authorities, or by other bodies governed by public law; or it is subject to management supervision by those authorities or bodies; or it has an administrative, managerial or supervisory board, more than half of whose members are appointed by the State, or local public authorities, or by other bodies governed by public law;

e) “contracting entities”, for the purposes of the rules:

1) Part II of the Code, the entities which:

1.1. they are contracting authorities or publicly held companies which carry out an activity of which at Articles 115-121;

1.2. even if they are not contracting authorities nor publicly held companies, they carry out one or more of those activities listed at Articles 115-121 and they work thanks to special or exclusive rights granted by the competent authority:

2) Part III of the Code, the entities which carry out an activity of which at Annex II and they award a concession for the realization of one of those activity, such as:

2.1 the State administrations, the local public authorities, the bodies governed by public law, the associations, the unions, the consortia, whatever called, formed by one or more such authorities;

2.2 the publicly held companies of which at letter t) of this paragraph;

2.3 other entities from those ones indicated at points 2.1 and 2.2 but working thanks to special or exclusive rights for the purposes of one or more of those activities of which at Annex II. The entities which are entitled of special or exclusive rights though a procedure wherein an adequate publicity has been ensured and the entitlement of these rights is founded on objective criteria are not considered as contracting entities for the purposes of the point 2.3;

f) “contacting subjects” only for the purposes of Parts IV and V are the contracting authorities of which at letter a), the contracting entities of which at letter e) and the other public or private subjects financed of which at the aforementioned Parts IV and V;

g) “other contracting subjects”, the private subjects which have to comply with the rules of the Code;

h) “joint venture”, the associations among two or more entities, for the purpose of the implementation of a project or a series of projects or of certain agreements of commercial or financial kind;

i) “central purchasing body”, a contracting authority or a contracting entity providing centralized purchasing activities and, possibly, ancillary purchasing activities;

l) “centralized purchasing activities” means activities conducted on a permanent basis, in one of the following forms:

1) the acquisition of supplies and/or services intended for contracting authorities,

2) the award of public contracts or the conclusion of framework agreements for works, supplies or services intended for contracting authorities;

m) “ancillary purchasing activities” means activities consisting in the provision of support to purchasing activities, in particular in the following forms:

1) technical infrastructure enabling contracting authorities to award public contracts or to conclude framework agreements for works, supplies or services;

2) advice on the conduct or design of public procurement procedures;

3) preparation of procurement in the name and on behalf of the contracting authority concerned;

4) management of procurement in the name and on behalf and for the account of the contracting authority concerned;

n) “aggregator body”, the central purchasing bodies in the list established according to Article 9, par. 1, law-decree 24 April 2014, n. 66, converted, with amendments, in the law 23 June 2014, n. 89;

o) “contracting body”, the contracting authorities of which at letter a), the contracting entities of which at letter e), the contracting subjects of which at letter f) and the other contracting subjects of which at letter g);

p) “economic operator”, any natural or legal person, public entity, group of such persons and/or entities, including any temporary association of undertakings, entity without legal personality, including the European Economic Interest Grouping (EEIG), established according to the legislative decree 23 July 1991, n. 240, which offers the execution of works and/or a work, the supply of products or the provision of services on the market;

q) “concessionaire” , an economic operator which has been awarded a concession;

r) “promoter”, an economic operator which participates to a public-private partnership;

s) “procurement service provider”, a public or private body which offers ancillary purchasing activities on the market for ensuring the development of the purchasing activities of the subjects at letters a), b), c), d) and e);

t) “publicly held companies”, the companies on which contracting authorities may exercise, directly or indirectly, a dominant influence because they own the, or because they have a financial participation in them, or thanks to rules which govern them. The dominant influence is presumed whenever the contracting authorities, directly or indirectly, alternatively or cumulatively:

1) they have the majority of the subscribed capital;

2) they control the majority of the votes given by the shared issues;

3) they can appoint the majority of the members of the board of directors, of the governing board or of the supervisory body;

u) “temporary association of undertakings”, an association of undertakings, suppliers, or service providers, established, even through a private agreement, for the purpose of participating to a procurement procedure of a specific public contract, through the submission of a single offer;

v) “consortia”, the consortia established by the legal order, with or without legal personality;

z) “affiliated undertaking”, any undertaking whose annual accounts are consolidated with the contracting authority ones, according to Article 25 and subsequent of legislative decree 9 April 1991, n. 127 and following amendments. In case of entities to which the aforementioned legislative decree does not apply, alternatively, “affiliated undertaking means any undertaking:

1) on which the contracting authority may exercise, directly or indirectly, a dominant influence; or which may exercise a dominant influence on the contracting authority;

2) that, as the contracting authority, is subjected to the dominant influence of another undertaking because of ownership assets, or because of financial participation or because of internal rules;

aa) “micro, small and medium enterprise”, enterprises as defined in Commission Recommendation 2003/361/EC of 6 May 2003. Particularly, medium enterprises are those ones with less of 250 employees and an annual turnover not greater then 50 million EUR, or a global annual budget not greater than 43 million EUR; small enterprises are those ones with less of 50 employees and an annual turnover or a global annual budget not greater then 10 million EUR; micro enterprises are those one with less of 10 employees and an annual turnover of a global annual budget not greater then 2 million EUR.

bb) “candidate”, an economic operator that has sought an invitation or has been invited to take part in a restricted procedure, in a competitive procedure with negotiation, in a negotiated procedure without prior publication, in a competitive dialogue, in an innovation partnership or in a concession procedure;

cc) “tenderer”, an economic operator that has submitted a tender;

dd) “contracts” or “public contracts”, procurement or concession contracts for pecuniary interest concluded in writing between one or more economic operators and one or more contracting authorities and having as their object the execution of works, the supply of products or the provision of services;

ee) “contracts of European relevance”, public contracts with a value net of value-added tax VAT) estimated to be equal to or greater than the thresholds at Article 35 and which do not fall within the excluded contracts;

ff) “under-threshold contracts”, public contracts with a value net of value-added tax VAT) estimated to be inferior to the thresholds at Article 35;

gg) “ordinary sectors”, the sectors of public contracts, other than water, energy, transport and postal services sectors, geographical exploitation, as regulated by Part II of Code, wherein the contracting authorities work;

hh) “special sectors”, sector of public contracts of water, energy, transport and postal services sectors, geographical exploitation, as regulated by Part II of Code, wherein the contracting authorities work;

ii) “public procurement”, procurement contracts for pecuniary interest concluded in writing between one or more economic operators and one or more contracting authorities and having as their object the execution of works, the supply of products or the provision of services;

ll) “public procurement of works”, contracts concluded in writing having as their object one of the following:

1) the execution, or both the design and execution, of works related to one of the activities within the meaning of Annex I;

2) the execution, or both the design and execution, of a work;

3) the realization, by whatever means, of a work corresponding to the requirements specified by the contracting authority exercising a decisive influence on the type or design of the work;

mm) “written” or “in writing”, any expression consisting of words or figures which can be read, reproduced and subsequently communicated, including information transmitted and stored by electronically means;

nn) “works” of which at Annex I, the building, demolition, recovery, urban and construction renovation, restoration, maintenance of buildings;

oo) “complex works” works which overcomes the threshold of 15 million EUR and which are characterized by particular complexity due to the typology of the works, to the use of innovative materials and items, to the execution in areas which produce logistic difficulties or particular geotechnical, hydraulic or environmental criticalities;

oo-bis) “works of prevalent category” the category of works, general or specific, of greater value among the categories constituting the work and listed in the tender documents; oo-ter) “work of deductible category”, the category of works, identified by the procuring authority within the tender documents, which does not belong to the prevalent category and, in any case, of value greater than 10 percent of the total value of the work, or of value greater than 150.000 EUR or belonging to the category of which at Article 89, par. 11;

oo-quarter) “ordinary maintenance”, without prejudice to what provided by the President of Republic decree 6 June 2001, n. 380 and by the legislative decree 22 January 2004, n. 42, the works of reparation, renovation, and substitution needed for eliminating the decay of manufactures and related pertinences, for the purpose of conserving the status and the usability of the related works, by keeping them in good conditions of functioning and security, without depriving them of their solidity, safeguarding the value of the good and its functionality;

oo-quinquies) “extraordinary maintenance”, without prejudice to what provided by the President of Republic decree 6 June 2001, n. 380 and by the legislative decree 22 January 2004, n. 42, the works and the needed modification for renovating and substituting parts even structural of manufactures and related pertinences, for fixing the components, the items and the works connected to the use and to the current regulations and with the purpose of remedying to the relevant decay due to the loos of structural characteristics, technological and design, eve to the end of improving the performances, the structural characteristics, energetic and of typology efficiency, and even for increasing the value of the good and its functionality;

pp) “work”, the result of a series of works, which exploits by its own an economic or technical function. A work means both the result of a series of building works or of civil engineering, the defense and environmental protection buildings, of agricultural and forestall protection, of landscape and naturalistic engineering;

qq) “functional lot”, a specific object of a procurement to be awarded even throughout a separate and autonomous procedure or parts of works or general service whose project and development may ensure functionality, usability and feasibility independently from the development of the other parties;

rr) “public works uncompleted”, public works uncompleted of which at Article 44-bis of the law- decree 6 December 2011, n. 201, converted, with amendments, by law 22 December 2011, n. 214, and of which Ministry of Transport and Infrastructure decree 13 March 2013, n. 42, published on the Official Journal 24 April 2013, n. 96;

ss) “public service procurements”, public procurement between one or more procuring entity and one or more economic operators having as their object the provision of services other then those ones referred at letter ll);

tt) “public supply procurements”, public procurement between one or more procuring entity and one or more economic operators having as their object the purchase, the lease, the rental or hire- purchase, with or without an option to buy, of products, A public supply procurement may include, as an incidental matter, siting and installation operations;

uu) “public works concession”, a contract for pecuniary interest concluded in writing by means of which one or more contracting authorities or contracting entities entrust the execution of works or the executive project and execution, or the final project, or the executive project and the execution of works to one or more economic operators the consideration for which consists either solely in the right to exploit the works that are the subject of the contract or in that right together with payment;

vv) “public service concession”, contract for pecuniary interest concluded in writing by means of which one or more contracting authorities or contracting entities entrust the provision and the management of services other than the execution of works referred to in point a) to one or more economic operators, the consideration of which consists either solely in the right to exploit the services that are the subject of the contract or in that right together with payment.

zz) “operating risk”, the risk related to the exploitation of works or services on the side of the demand or of the supply or on both side, transferred to the economic operator in cases referred to in Article 180. The economic operator in cases referred to in Article 180 takes the operating risk whenever, under normal operating conditions, that mean the absence of unforeseeable events, it will not recoup the investments made and the costs incurred in operating the works or services awarded thought the concession. The part of the risk transferred to the economic operator means a real exposition to market fluctuations serious enough that any potential loss suffered by the economic operator shall be neither merely nominal nor insignificant;

aaa) “construction risk”, the risk related to delay in delivering, to the non compliance with the project standards, to the increasing of costs, to technical inconvenient and to the non-completion of the work;

bbb) “availability risk”, the risk related to the concessionaire capacity to deliver the performances provided within the contract, both with regard to quantity and quality standards;

ccc) “demand-side risk”, the risk related to the different demand volumes of the service that the concessionaire has to satisfy, or the risk related to the lack of users and then of cash flows;

ddd) “design contests”, those procedures which enable the contracting authority, in the sectors of architecture, engineering, renovation and protection of cultural and archeological heritage, urban planning as well as territorial, environmental, naturalistic, geological, urban green and forestall agronomical landscape, and of securization and mitigation of hydrological and hydraulic impact and elaboration of data, a plan or a design selected by a jury after being put out to competition with or without the award of prizes;

eee) “public-private partnership”, a contract for pecuniary interest concluded in writing by means of which one or more procuring entities confer to one or more economic operator for a fixed period determined by the time needed for the amortization of the investment or of the financing modalities determined, a series of activities consistent in the realization, transformation, maintenance and operating use of a work in return of its use, or its economic exploitation, or the supply of a service related to the use of the work itself, while the economic operator assuming the risk as determined by the contract. Without prejudice to the obligations provided by Article 44, par. 1-bis, of law-decree 31 December 2007, n. 248, converted, with amendments, by the law 28 February 2009, n. 31, the content of Eurostat decision, for the sole purpose of public finances protection, shall apply.

fff) “economical-financial equilibrium”, the simultaneous presence of the conditions of economic convenience and financial sustainability. Economic convenience means the capacity of the project to create value within the duration of the contract and to produce a level of profitability adequate to the invested capital; financial sustainability means the capacity of the project to generate enough cash flows to ensure the reimbursement of the financing;

ggg) “leasing of public works or of public utility” , the contract having as a object the performance of financial services and the execution of works;

hhh) “contract of availability”, the contract through which the building and the making of availability of a private work destined to the public function in favor to the contracting authority are conferred to an economic operator at its own risk and costs, in return of a payment. The making of availability means the task assumed to its own risk by the economic operator awarded to ensure to the contracting authority the constant use of the work, in compliance with the parameter of functionality provided within the contract, guaranteeing thus the perfect maintenance and the amendment of all the potential defects, even if subsequent;

iii) “framework agreement”, the agreement concluded between one or more procuring entity and one or more economic operator whose is to establish the clauses related to the procurement to be awarded during a certain period of time, particularly with regard to the prices and, eventually, of the quantities requested;

lll) “exclusive right”, a right granted by a competent authority by means of any law, regulation or published administrative provision which is compatible with the Treaties the effect of which is to limit the exercise of an activity to a single economic operator and which substantially affects the ability of other economic operators to carry out such an activity;

mmm) “special right”, a right granted by a competent authority by means of any law, regulation or published administrative provision which is compatible with the Treaties the effect of which is to limit the exercise of an activity to two or more economic operators and which substantially affects the ability of other economic operators to carry out such an activity;

nnn) “contracting profile”, a procuring entity website, whereof all the tender documents and the information requested by the Code and by the Annex V are published as well,

ooo) “tender document”, any document produced or referred to by the contracting authority to describe or determine elements of the procurement or the procedure, including the contract notice, the prior information notice where it is used as a means of calling for competition, the technical specifications, the descriptive document, the proposed conditions of contract, the formats for the presentation of documents by candidates and tenderers, information on generally applicable obligations and any additional documents;

ppp) “concession document” any document produced or referred to by the contracting authority to describe or determine elements of the concession or the procedure, including the concession notice, the technical and functional, the descriptive document, the proposed conditions of contract, the formats for the presentation of documents by candidates and tenderers, the information on generally applicable obligations and any additional documents;

qqq) “social clauses”, clause which oblige the employer to comply with certain standard of social security and workers protection as conditions for carrying out an economic activity within a procurement or a concession or to get the benefits provided by the law and financial facilitations;

rrr) “awarding procedure” and “award”, the award of works, services or supplies or design projects through procurement; the award of works or services through concession; the award of design contest and design competition;

sss) “open procedures”, award procedures wherein any interested economic operator may submit a tender;

ttt) “restricted procedures”, award procedures wherein any interested economic operator may ask to participate and wherein only economic operators invited by the contracting authorities according to the modalities provided by the Code may submit a tender;

uuu) “negotiated procedures”, award procedures wherein the procuring entities consult the economic operators chosen by themselves and negotiate with one or more of them the procurement conditions;

vvv) “competitive dialogue”, an award procedure wherein the procuring entity start a dialogue with the candidates admitted to this procedure, for the purpose of elaborating one or more solutions apt to satisfy its needed and on the basis of which the selected candidates are invited to submit tenders; any economic operator may submit a request to participate;

zzz) “electronic system”, a system constituted by informatics solution and telecommunications, which allow the development of the procedures of the Code;

aaaa) “dynamic purchasing system”, an award procedure entirely electronic, for commonly used purchases, which characteristics, as generally available on the market, meet the requirements of a contracting authority, open throughout the period of validity of the purchasing system to any economic operator that satisfies the selection criteria;

bbbb) “electronic market”, a procuring and negotiating tool which allows electronic purchases for values inferiors to the thresholds of European significance based on a system which realized entirely electronic selection procedure of tenders;

cccc) “purchasing tool”, purchasing tools which do not require to recur to the competitive market. Among them:

1) the framework convention of which Article 26 of law 23 December 1999, n. 488, signed, according to the law currently in force, by Consip S.p.a. and by the aggregating bodies;

2) the framework agreement signed by central purchasing bodies when the specific procurements are awarded without reopening the competition;

3) the electronic market realized by central purchasing bodies where the purchased made through a catalogue;

dddd) “negotiation tool”, purchasing tools which requires to recur to the competitive market. Among them:

1) the framework agreements signed by central purchasing bodies wherein the specific procurement are awarded by reopening the competition;

2) the dynamic purchasing system realized by central purchasing bodies;

3) the electronic market realized by central purchasing bodies wherein purchases made by recurring to the competitive market

4) the system realized by central purchasing bodies which allow the development of procedures in compliance with the Code:

eeee) “purchasing electronic tools” and “negotiations electronic tools”, purchasing and negotiating tools managed by an electronic system;

ffff) “electronic auctions”, a procedure per following phases based on an electronic format which of new prices, revised downwards, and/or new values concerning certain elements of tenders are presented, which intervene after a first complete evaluation of the tenders by allowing that their classification may be realized on an automatic base;

gggg) “direct administration”, the purchases made by procuring entities with their own means and materials or specifically acquired or leased and by own or specifically employed workers, under the direction of the responsible of the procedure;

hhhh) “life cycle”, all consecutive and/or interlinked stages, including research and development to be carried out, production, trading and its conditions, transport, use and maintenance, throughout the existence of the product or the works or the provision of the service, from raw material acquisition or generation of resources to disposal, clearance and end of service or utilization;

iiii) “label”, any document, certificate or attestation confirming that the works, products, services, processes or procedures in question meet certain requirements;

llll) “label requirements”, the requirements to be met by the works, products, services, processes or procedures in question in order to obtain the label concerned;

mmmm) “media services supplier”, the natural or legal person who takes the editorial responsibility of the choice of the content of the media service and determines the formats of management;

nnnn) “innovation”, the implementation of a new or significantly improved product, service or process, including but not limited to production, building or construction processes, a new marketing method, or a new organizational method in business practices, workplace organization or external relations;

oooo) “program”, a series of animated imagines, with or without sound, which constitute a single item within a show schedule or a catalogue established by a media services supplier which form and content are comparable to the form and content of the media diffusion. Radio programs and related materials are included too. Transmission merely repetitive or with fixed imagines are not instead included.

pppp) “electronic mean”, electronic equipment for the processing (including digital compression) and storage of data which is transmitted, conveyed and received by wire, by radio, by optical means or by other electromagnetic means;

qqqq) “electronic communications network”, a network of electronic communications used entirely or mostly for providing electronic communications services open to the public which allows the transfer of information among the hubs of the network;

rrrr) “electronic communications service”, the services provided, in return of a payment, which entirely or mostly are constituted by the transfer of signals on electronic communications network, included the media service and the information service used for the radio television transmission, but for the services which provide content transmitted by using network and electronic communications services or which exercise an editorial control on their contents; the service of the society of information oh which at Article 2, par. 1, lett. a) of legislative decree 9 April 2003, n. 70, not consistent entirely or mostly in the transfer of signals on electronic communications services are excluded;

ssss) “AAP”, the agreement on public procurement established within the framework of the Uruguay Round negotiations;

tttt) “Common Procurement Vocabulary”, CPV (Common Procurement Vocabulary), the framework of reference of public procurement as adopted by Regulation EC) No 2195/2002, by ensuring at the same time the correspondence with the current nomenclatures;

uuuu) “Code”, the present decree, which regulate the public, contracts of works, services and supplies;

vvvv) “architecture and engineering and other technical services”, the services reserved to economic operators which exercise a professional work regulated by Article 3 of Directive 2005/36/CE;

zzzz) “general works category”, the works and the buildings characterized of a series of works necessary for delivering the work or the buildings ended;

aaaaa) “specialized works category”, the works and the buildings which, in their development, need of performances characterized by a particular specialization or professionalization;

bbbbb) “single and specific works”, those ones that interested a limited area;

ccccc) “network model works”, those ones, which, destined to the transport of persons and goods material and immaterial, have mostly a one-dimensional development and they interest large areas;

ddddd) “fixed price procurement”, whenever the contractual fixed payment refers to the whole performance as executed and provided within the contract;

eeeee) “tailor-made procurement”, whenever the contractual fixed payment is determined by applying to the unit of measure of the single parties of the work executed the unitary price provided within the contract;

fffff) “aggregation”, the agreement between ore or more contracting authorities or contracting entities for the common management of one or all activities of programming, projecting, award, execution, and control for the purchase of goods, services and works;

ggggg) “performance lot”, a specific object of a procurement to be awarded even with separate and autonomous procedure, defined on qualitative basis, according to the various categories and specializations available or according to the different phases of the project;

ggggg-bis) “principle of unity of the dispatch”, the principle according to which any data is furnished once and to one and only information system, cannot be requested by other system or other data banks, but it is available by the receiving information system. This principle applies to the data related to the programming of work, works, services, and supplies, and to all the awarding and execution public contract procedures which follow the rules of the Code and to those one excluded, entirely or in part, any time the Code subject them to the communication obligation to a data bank;

ggggg-ter) “project unit”, the maintenance, in the three phases of the project, of the original spatial, esthetical, functional and technological characteristic of the project;

ggggg-quarter) “feasibility study of the project alternatives”, the document wherein the possible project alternatives are identified and analyzed and wherein any alternative evaluation is noted, under the qualitative profile, also under an environmental perspective, and under the technical and economical perspectives too;

ggggg-quinquies) “two-years program of the purchase of goods and services”, the document which the public administration adopt to identify the purchases of supply and services needed in two years, needed to satisfy the needs reveled and evaluated by the competent authority;

ggggg-sexies) “three-years program of the public works, the document which the public administration adopt to identify the works needed in three years, needed to satisfy the needs reveled and evaluated by the competent authority;

ggggg-septies) “one year catalogue of the works”, the catalogue of the works provided within the three-years program of the public works, to be started in the first year of the program itself;

ggggg-octies) “one year of the purchase of supplies and services”, the catalogue of the purchase of supplies and services provided within the two-years program, to be started in the first year of the program itself;

ggggg-nonies) “framework of needs”, the document which is written and approved by the public administration in the phase before the program of the purchase and which identifies, on the basis of the data available, in relation to the typology of the work or the purchase to be realized the general objectives to be pursued through the realization of the purchase, the