Annex V.2 Procedure for establishing the Technical Advisory Board.

(Article 215, paragraph 1)

Article 1.

Formation of the Board and compensation.

1. The Technical Advisory Board (hereinafter also referred to as the «Board» or «CCT») is made up, at the choice of the contracting authority, of three members, or five in the case of justified complexity of the work and heterogeneity of the professional skills required, with experience and professional qualifications appropriate to the type of work, including engineers, architects, jurists and economists with proven experience in the sector of procurement, concessions and public investments, also in relation to the specific object of the contract.< /p>

2. The members of the Board can be chosen by the parties by mutual agreement, or the parties can agree that each of them appoints one or two members, also identified among their own employees or among people linked to them by self-employment or collaboration relationships, including continuous in possession of the requirements set out in paragraph 1, and that the third or fifth member, with the functions of president, is chosen by the party-appointed members. In the event that the parties do not reach an agreement on the appointment of the president within the deadline indicated in paragraph 1 of article 2, this is designated within the following five days by the Ministry of Infrastructure and Transport for works of national interest, by the regions , from the autonomous provinces of Trento and Bolzano or from metropolitan cities for works of respective interest.

3. The professional requirements and cases of incompatibility of the members and the President of the Technical Advisory Board, the preferential criteria for their choice are defined with specific Guidelines adopted by decree of the Minister of Infrastructure and Transport following the opinion of the Superior Council of Public Works. The same guidelines also define the parameters for determining the compensation which must be related to the value and complexity of the work, as well as the extent and duration of the commitment required and the number and quality of the decisions made. In the meantime, the guidelines approved by decree of the Minister of Sustainable Infrastructure and Mobility of 17 January 2022, published in the Official Gazette of the Italian Republic no. 55 of 7 March 2022, also subsequently amended.

4. Article 813, second paragraph, of the civil procedure code applies to the members of the Technical Advisory Board.

5. Without prejudice to the right of the members of the Technical Advisory Board to receive compensation paid by the parties proportionate to the value of the work, the number, quality and timeliness of the decisions taken, the fixed part of the compensation cannot exceed the amounts defined by the article 6, paragraph 7-bis, of the legislative decree of 16 July 2020, n. 76, converted, with amendments, by law 11 September 2020, n. 120. The compensation due to the members of the Board cannot exceed three times the fixed portion.

Article 2.

Constitution and establishment of the College.

1. The Technical Advisory Board must be established on the initiative of the contracting authority before the start of execution or in any case no later than ten days from that date. Non-compliance or delay in the establishment of the CCT, in the case of assignments exceeding the threshold of European relevance, can be assessed both for the purposes of managerial and fiscal responsibility and, in the relations between the contracting authority and the economic operator, from the of contractual good faith. In case of failure to designate the members, the non-defaulting party may contact the president of the ordinary court where the contracting authority, identified as the headquarters of the CCT, is located.

2. The CCT is intended to be established upon acceptance of the office by the president. Within the next fifteen days of acceptance, an establishment session of the Board must be held in the presence of the legal representatives of the parties, who are required to make a verbal declaration regarding the possible intention not to attribute the rulings of the Board with the value of a contractual award pursuant to the article 808-ter of the civil procedure code.

3. In the minutes of the settlement session, taking into account the object and complexity of the contract, the frequency and methods of carrying out the meetings and any inspections are defined and, if the parties have not made use of the right to exclude that the decisions of the Board assume the nature of a contractual award, the terms and methods of carrying out the cross-examination are specified, specifying the dies a quo of the fifteen-day deadline for pronouncing the award.

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Article 3.

Decisions of the Technical Advisory Board.

1. The procedure for expressing the opinions or decisions of the CCT can be activated by either party or by both jointly by submitting a written question through a formal request directly to the CCT and to the other party. The burden of registering reserves according to current regulations remains unchanged. Requests for opinions or decisions from the CCT must be accompanied by all the documentation necessary to illustrate the reasons for the dispute, specifying what the proposed question is.

2. In adopting its decisions, the Advisory Board can also operate via videoconference or any other remote connection.

3. Without prejudice to what is specifically provided in the settlement minutes on the methods of carrying out the cross-examination, the Board is in any case entitled to proceed with informal hearings of the parties or summon the parties to allow the exposition of their respective reasons in cross-examination. However, the possibility of providing technical consultancy ex officio remains excluded.

4. The decisions of the Technical Advisory Board are adopted with a deed signed by the majority of the members, within fifteen days starting from the date of communication of the question, if formulated jointly by the parties, or from the moment in which the formulation of several questions separately has been completed formulated by the parties regarding the same issue. The decisions can be made with a succinct justification which, if necessary, can be integrated in the following fifteen days, signed by the majority of the members. In case of particular investigative needs, decisions can be adopted within twenty days of communication of the questions. Decisions are taken by majority.

5. When the provision that defines the judgment corresponds entirely to the content of the determination of the Advisory Panel, the judge excludes the reimbursement of the expenses incurred by the winning party who did not observe the determination, referable to the period following its formulation, and the sentence to the reimbursement of the expenses incurred by the losing party relating to the same period, as well as the payment to the State budget of a further sum corresponding to the unified contribution due. The applicability of articles 92 and 96 del civil procedure code.

Article 4.

1. Each member of the Technical Advisory Board cannot hold more than five roles at the same time and in any case cannot hold more than 10 roles every two years. In the event of a delay in the adoption of three decisions or a delay of more than sixty days in the adoption of even a single decision, the members of the Board cannot be re-appointed as members of other boards for a period of three years starting from the date of maturation of the delay.

2. Only unjustified delay in adopting decisions constitutes a cause of liability towards the parties; in this case, the contracting authority may take the decisions within its competence regardless of the opinion of the Board.

Article 5.

Observatory.

1. The Presidents of the consultative colleges ensure that the acts of establishment and dissolution of the College and the main rulings made by the College are sent to the permanent Observatory to ensure the monitoring of the activity of the technical consultative colleges established at the Superior Council of Public Works.

Article 6.

Optional establishment of the Technical Advisory Board

1. The Technical Advisory Board referred to in article 218 of the code is made up of three members. Two members are appointed by the contracting authority and the third is appointed, for works of national interest, by the Ministry of Infrastructure and Transport and, for works of local interest, by the regions, by the autonomous provinces of Trento and Bolzano or from metropolitan cities. Without prejudice to any need to replace one of the members designated by the contracting authority with one privately appointed, the functions of a member of the technical advisory board appointed pursuant to this article are not incompatible with those of a member of the board appointed pursuant to the article 1.