Annex I.1 Definitions of subjects, contracts, procedures and tools.
(Article 13, paragraph 6)
Article 1.
Definitions of subjects
1. In the code it is meant by:
a) «contracting authority», any entity, public or private, which awards contracts for works, services and supplies and who is in any case required, when choosing the contractor, to comply with the code;
b) «granting body», any contracting authority or contracting body, or other public or private entity, which awards contracts for the concession of works or of services and which is in any case required, when choosing the contractor, to comply with the code;
c) «central administrations», Presidency of the Council of Ministers, Ministry of Foreign Affairs and international cooperation, Ministry of the Interior (including the Prefectures-Territorial Government Offices and the regional and interregional fire brigade directorates), Ministry of Justice and judicial offices (excluding justices of the peace), Ministry of Defence, Ministry of Economy and Finance, Ministry of Business and Made in Italy, Ministry of Agriculture, Food Sovereignty and Forestry, Ministry of the Environment and Energy Security, Ministry of Infrastructure and Transport, Ministry of Labor and Social Policies (including its peripheral branches), Ministry of Health, Ministry of Education and Merit, Ministry of University and Research, Ministry of Culture (including its peripheral branches), Ministry of Tourism, CONSIP SpA (only when CONSIP acts as central commissioning for central administrations), National Agency for assets seized and confiscated from organized crime and the legal entities that succeeded them;
d) «sub-central administrations» , all public administrations other than the central administrations referred to in letter c);
e) «body governed by public law», any entity, even having a corporate form:
1) endowed with legal capacity;
2) established to specifically satisfy needs of general interest, through the carrying out of an activity devoid of character industrial or commercial;
3) whose activity is financed mostly by the State, by local public bodies or by other bodies governed by public law, or whose management is subject to the control of the latter, or the whose administrative, management or supervisory body is made up of members, more than half of whom are designated by the State, local public bodies or other bodies governed by public law;
f) « public enterprise», the enterprise over which the contracting authorities can exercise, directly or indirectly, a dominant influence either because they are its owners, or because they have a financial participation in it, or in by virtue of the rules governing that company. Dominant influence is presumed when the contracting authorities, directly or indirectly, with respect to the company, alternatively or cumulatively:
1) hold the majority of the subscribed capital;
2) control the majority of votes to which the shares issued by the company are entitled;
3) can designate more than half of the members of the company's board of directors, management or supervisory board;
g) «subjects holders of exclusive or special rights», the holders of rights granted by the State or local authorities or by other public administrations through legislative or regulatory acts or administrative, adequately published, having the effect of reserving, respectively, to one or more economic operators the exercise of the activities envisaged by articles 146 to 152 of the code and of substantially affecting the ability of other entities to carry out this activity. Rights granted by virtue of a public procedure based on objective criteria and capable of guaranteeing adequate transparency do not constitute exclusive or special rights;
h) «joint venture», the association between contracting authorities or granting bodies, aimed at the implementation of a project or a series of projects or certain agreements of a commercial or financial nature;
i) «central purchasing body», a contracting authority or a granting body that provides centralization of commissioning activities in favor of other contracting authorities or granting bodies and, if necessary, support activities for the commissioning activity;
l) «economic operator», any person or entity, including non-profit, which, regardless of its legal form and public or private nature, can offer services on the market, pursuant to national law of works, services or supplies corresponding to those covered by the public tender procedure;
m) «temporary grouping», a group of entrepreneurs, or suppliers, or service providers, established or constituting, also by private agreement, for the purpose of participating in the procedure for awarding a specific public contract through the submission of a single offer;
n) «contractor», an economic operator to which a contract or concession is entrusted;
o) «micro, small and medium-sized enterprises», companies as defined in recommendation no. 2003/361/EC of the European Commission, of 6 May 2003;
p) «aggregating subjects», the subjects referred to in article 9 of the legislative decree of 24 April 2014, n. 66, converted, with amendments, by law 23 June 2014, n. 89, registered by right in the ANAC list pursuant to article 63, paragraph 4, of the code;
q) «contracting authorities», the State administrations, the bodies territorial public bodies, other non-economic public bodies, bodies governed by public law, associations, unions, consortia, however named, constituted by said subjects;
r) «contracting bodies», the subjects indicated in Article 7 of Directive 2014/23/EU of the European Parliament and of the Council of 26 February 2014;
s) 'candidate' means an economic operator who has requested an invitation or has been invited to participate in an restricted procedure, a competitive procedure with negotiation, a negotiated procedure without prior publication of a contract notice, a competitive dialogue or an innovation partnership or a procedure for the award of a concession;
t) «qualified contracting authority», any entity, public or private, qualified pursuant to Annex II.4 to the code for the assignment of works for an amount equal to or greater than 500 thousand euros and for the acquisition of services and supplies of an amount equal to or greater than the thresholds established for direct assignments.
Definitions of contracts.
1. In the code we mean:
a) «contracts» or «public contracts», contracts, even other than tenders and concessions, concluded by a contracting authority or a granting body;
b) «procurement contracts" or "public procurement", onerous contracts stipulated 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 goods or the provision of services;
c) «concession contracts» or «concessions», the onerous contracts stipulated in writing under penalty of nullity by virtue of which one or more contracting authorities or one or several contracting entities entrust the execution of works or the provision and management of services to one or more economic operators, where the consideration consists solely in the right to manage the works or services covered by the contracts or in this right accompanied by a price;< /p>
d) «contracts for complex works», contracts concerning works characterized by particular complexity in relation to the type of works, the use of innovative materials and components, the need to coordinate heterogeneous disciplines or execution in places that present logistical difficulties or particular geotechnical, hydraulic, geological and environmental problems. In any case, all those jobs for which a high level of knowledge is required to mitigate the risk of lengthening contractual times or exceeding expected costs, or to protect the health and safety of the workers involved are complex;
e) «highly labour-intensive contracts», contracts in which the cost of labor is equal to or greater than 50 percent of the total amount of the fees ;
f) «onerous contracts», contracts for reciprocal services or which, in any case, directly provide for mutual benefits and economic sacrifices to all contracting parties;
g) «free contracts», contracts in which the obligation to perform or the economic sacrifices directly foreseen in the contract they burden only one or some of the contracting parties;
h) «active contracts», contracts which do not produce expenditure and from which an income for the public administration;
i) «availability contract», the contract with which an economic operator undertakes, towards a consideration and with the organization of the necessary means and with management at one's own risk, to carry out and allow the contracting authority to enjoy a work, intended for the exercise of a public service. The economic operator guarantees the best enjoyment of the work, keeping it in a state suitable for the agreed use and eliminating defects, even if they arise, at his own expense. The contract may provide for the transfer of ownership to the administration of the work, towards the payment of a further fee;
l) «donations», contracts by which, in a spirit of liberality, one party enriches the other, disposing of a right in favor of the latter or assuming an obligation towards the latter;
m) «excluded contracts», the contracts provided for in Section II of Chapter I of Title I of Directive no. 2014/23/EU, of the European Parliament and of the Council, of 26 February 2014, from Section 3 of Chapter I of Title I of Directive 2014/24/EU, from Section 2 of Chapter I of Title I of Directive 2014/25/ EU, of the European Parliament and of the Council, of 26 February 2014, which do not fall within the scope of application of the code;
n) «framework agreement», the agreement concluded between one or more contracting authorities and one or more economic operators, the purpose of which is to establish the clauses relating to the contracts to be awarded during a given period, in particular as regards prices and, where appropriate , the quantities envisaged;
o) «social clauses», provisions which require an employer to comply with certain standards of social protection and of work as a condition for carrying out economic activities under contract or concession or for accessing legal benefits and financial incentives.
Article 3.
Definitions of procedures and tools.
1. In the code we mean by:
a) «assignment of the contract», the act or procedure through which the contract is awarded to the economic operator selected or chosen by the contracting authority or the granting body;
b) «written» or «in writing», a set of words or digits that can be read, reproduced and then communicated, including information generated, transmitted and stored by electronic means and with e-procurement platforms;
c) «public tender procedure», the selective procedure through a tender between economic operators which, in compliance with European Union law and the regulations dictated by the code, is finalized through the comparative evaluation of the offers and the selection of the contractor, to the awarding of the contract;
d) «direct award», the awarding of the contract without a procedure of the tender, in which, even in the case of prior consultation with several economic operators, the choice is made at the discretion of the contracting authority or the granting body, in compliance with the qualitative and quantitative criteria referred to in article 50, paragraph 1, letters a) and b), of the code and of the general or special requirements provided for by the same code;
e) «in house assignment», the assignment of a procurement or concession contract carried out directly to a legal person governed by public law or private law defined by article 2, paragraph 1, letter o), of the consolidated law on publicly held companies, referred to in legislative decree 19 August 2016, n. 175 and under the conditions respectively indicated by Article 12, paragraphs 1, 2 and 3, of Directive 24/2014/EU and by Article 17, paragraphs 1, 2 and 3 of Directive 23/2014/EU, as well as, for the sectors special, from Article 28, paragraphs 1, 2 and 3, of Directive 24/2014/EU;
f) «open procedures», award procedures in which any interested economic operator can submit an offer;
g) «restricted procedures», the award procedures in which any economic operator can request to participate and in which only economic operators invited by the stations can submit an offer contracting bodies and the granting bodies, in the manner established by the code;
h) «negotiated procedures», the award procedures in which the contracting authorities and the granting bodies consult the economic operators chosen by them and negotiate the conditions of the contract with one or more of them;
i) "competitive dialogue", an award procedure in which the contracting authority initiates a dialogue with the candidates admitted to this procedure, in order to develop one or more solutions capable of satisfying its needs and on the basis of which the selected candidate(s) are invited to submit offers. Any economic operator may request to participate in this procedure;
l) «design competitions», the procedures intended to provide contracting authorities, in sector of architecture, engineering, restoration and protection of cultural and archaeological heritage, urban and territorial planning, landscape, naturalistic, geological, urban greenery and agronomic forest landscape, data processing systems, as well as in the sector for the safety and mitigation of hydrogeological and hydraulic impacts, a plan or project, selected by a judging commission on the basis of a tender, with or without the awarding of prizes;
m) « localization of public works», the procedure through which the area on which to carry out a public work of state interest is identified and its urban planning compatibility is ascertained;
< p>n) «public works of state interest», works carried out by state administrations or in any case works in state areas, as well as works to be carried out by any other body institutionally competent, intended to serve public interests not limited to the territory of a single region;o) «urban regeneration interventions», interventions that have the aim of combating land consumption, encouraging the recovery, reuse and valorisation of the existing building heritage and urban fabrics, encouraging compatible uses of public and private buildings and spaces, as well as promoting urban and architectural quality;
p) «life cycle of the public contract», the set of activities, including those of an administrative and non-contractual nature, which pertain to programming, design, publication, assignment and execution of the contract;
q) «methods and tools for digital information management of constructions», methodologies, processes and technologies enabled by formulation of information requirements and data modeling, which allow collaboration and exchange of structured data between interested parties during all phases of the life cycle, in particular aimed at mitigating and managing risks, improving the feasibility study and increase the effectiveness of a public investment, in the design, construction and management phases in the life cycle of physical assets such as buildings, infrastructures and networks;
r) «design error or omission», the inadequate assessment of the state of fact, failure or incorrect identification of the binding technical regulations for the design, failure to comply with the pre-established functional and economic requirements resulting from a written test, violation of the rules of diligence in the preparation of the documents, errors, inaccuracies or design omissions;
s) «functional lot», a specific object of a contract or concession to be awarded also with a separate and autonomous procedure, or parts of a job or general service whose design and implementation is such as to ensure functionality, usability and feasibility regardless of the implementation of the other parts;
t) «performance lot», a specific object of a contract or concession to be awarded also with a separate and autonomous procedure, defined on a qualitative basis, in compliance with the various categories and specializations present or in compliance with the various subsequent phases of the project;
u) «quantitative lot», a specific functionally autonomous object of contract or concession to be awarded also with a separate and autonomous procedure, defined on a purely quantitative, in accordance with the various categories and specializations present or in accordance with the various subsequent phases of the project adapted to the economic-financial capacity of medium and small businesses;
v) «institutional site », the website of the contracting authorities and granting bodies, containing the "Tender notices and contracts" section, in which the documents, data and information required by the code and the annex are published II.6. For subjects required to apply the legislative decree of 14 March 2013, n. 33, the subsection “Tenders and contracts” is located in the “Transparent Administration” section;
z) «auxiliary commissioning activities», activities that consist of providing support to client activities, in particular in the following forms:
1) technical infrastructures that allow contracting authorities to award public contracts or conclude agreements framework for works, supplies or services;
2) consultancy on the conduct or design of procurement procedures;
3) preparation of procurement procedures in the name and on behalf of the contracting authority interested;
4) management of procurement procedures in the name and on behalf of the contracting authority concerned;
aa) «global services», the complex of heterogeneous services, necessary for the completion, management, maintenance, financing of a work or service, and functional to the best pursuit of the administrative result, also in terms of efficiency and quality, of which is guaranteed by the economic operator;
bb) "work", the result of a set of works, which in itself performs an economic or technical function. The works include both those that are the result of a set of building or civil engineering works, and those of environmental defense and protection, agronomic and forestry protection, landscaping and naturalistic engineering;
cc) «purchase tools», acquisition tools that do not require opening of competitive comparison. The purchasing instruments include:
1) the framework agreements referred to in article 26 of law 23 December 1999, n. 488, stipulated, pursuant to current legislation, by CONSIP SpA and by the aggregating entities;
2) the framework agreements stipulated by central purchasing bodies when specific contracts are awarded without reopening the competitive comparison;
3) the electronic market created by the central purchasing body in the case of purchases made from the catalogue;
dd) «negotiation tools», acquisition tools that require the opening of competitive comparison. They are among the negotiation tools:
1) the framework agreements stipulated by central purchasing bodies in the event that specific contracts are awarded with the reopening of the competitive comparison;
2) the dynamic procurement system created by central purchasing bodies;
3) the electronic market created by central purchasing bodies in the case of purchases made through competitive comparison;
4) the systems created by central purchasing bodies which in any case allow the carrying out of the procedures pursuant to this code;
ee) «piecework», the entrustment of only the subcontractable work to a subcontracting company in possession of the certification of the necessary qualification requirements in relation to the total amount of the works entrusted and not to the amount of the contract, which may be lower due to the possible direct supply, in whole or in part, of materials, equipment and means of work by the executor.
