Public Private Partnership Contracts, Opinion of the Council of State no. 775_2017, meeting of the Special Commission of 22 February 2017, on the guidelines set up by the National Anticorruption Authority, entitled “Monitoring the contracting authorities on the activity of the economic operator in public private partnership contracts”

Passim
The Private Public Partnership and the need for a ‘multidisciplinary’ approach
2.1. The expression “Private Public Partnership” means a complex legal phenomenon, a European matrix (see, for example, the 2004 Green Paper on PPPs and Community Law on Public Procurement and Concessions), Communication from the European Commission of 15.11.2016, Resolution of the European Parliament of 16.10.2006; Interpretative Communication from the Commission on the application of Community law on public procurement and concessions to public private partnerships – institutionalized private individuals of 5.2.2008; Green Paper 2011 on modernizing EU policy on the subject of public procurement for greater efficiency in the European procurement market), characterized by a substantial balance between public and private entities for the realization of an activity aimed at achieving public interest, where the first (public subjects)
is assigned the task of identifying / selecting public interests from suits as well as the most appropriate economic / legal / financial instrument to be able to achieve, in addition to monitoring and control over their actual achievement, while the latter (private individuals making available to the public administration their own capacities financial and know-how) is recognized as having the right to retrieve utility, through the availability or economic exploitation of the work (through the ordinary phases of its realization, transformation, maintenance and management).
It is a co-operation instrument for the effective and effective realization of public interests, which is not only the implementation of the principle of horizontal solidarity as per art. 118, paragraph 4 of the Constitution, but also constitutes a significant remedy for the overcoming of financial crises and public constraints on public spending; it is also likely to promote a significant renewal of public administration through the acquisition of specifc technical and scientifc knowledge, specifc to private realities, capable of providing new and innovative tools to make administrative action more consistent with the principles of impartiality and good progress preached by art. 97 of the Constitution (in these terms: Cons. State, Ad Plen, March 3, 2008, No. 1).
2.2. As emerges from the definitions contained in art. 3, paragraph 1, lett. eee), and 180 of Legislative Decree 18 April 2016, no. 50, the peculiarities of the public-private partnership contract are the burden-sharing and risk transfer of the operator, as well as the financial economic balance, which is in particular “the premise for the correct allocation of the risks referred to in paragraph 3 “(Article 180, paragraph 6).
In particular, paragraph 2 of art. 180 states that “In public private partnership contracts, the operating income of the economic operator comes from the fee recognized by the beneficial owner and / or any other form of economic compensation received by the same economic operator, also in the form of a direct management of the service for external users “; the following paragraph 3 adds that “In the public private partnership contract, the transfer of risk to the economic operator entails allocating it to the latter as well as the risk of construction, including the risk of disability or, in the case of business activities profitability of the services rendered, for the period of operation of the work … “, specifying that” The content of the contract is defined by the parties so that the recovery of the investments made and the costs incurred by the ‘economic operator to perform the work or to provide the service depends on the actual provision of the service or usability of the work or the volume of the services provided at the request and the evaluation takes place ex ante “, concluding significantly that” The public private partnership contract is also governed by also risks, accidents on charges, arising from facts not attributable to the economic operator. ”
These features, further underlined in recital 6, that the economic and financial equilibrium is the very prerequisite for the correct application of the risks (financial balance equates to Article 3 (1) (m) , of Legislative Decree No. 50 of April 16, 2016, “the simultaneous presence of conditions of economic convenience and financial sustainability. Economic convenience means the ability of the project to create value within the scope of the contract’s effectiveness and to generate an adequate level of profitability for invested capital, financial sustainability means the ability of the project to generate cash fows sufficient to secure repayment of the loan “) reasonably believe that public private partnership is in reality an economic and financial phenomenon, which finds legal discipline in the relevant partnership contract, qualifable as an atypical contract, in which the parties determine in a way that their respective positions are more appropriate and appropriate to the achievement of the public interest solely determined by the public.
On the basis of this short reconstruction, public private partnership emerges as a contractual genus referring to several specific models, including “project finance, construction and management granting, service provision, financial leasing of public works, the contract of availability and any other process of realization in partnership of works and services which have the characteristics set out in the preceding paragraphs “(Article 180, paragraph 8).
2.3. Against this background, in accordance with the same Community approach to public private partnership and its economic and financial nature, even before its legality, it is decisive for the purposes of its practical use to adopt a ‘multidisciplinary’ approach by the responsible administrations, in which the professionalism of jurists alongside that of economists and technicians (see also below, § 4.5).
To this end, the contribution, cognitive and regulatory (also latu sensu) is equally crucial, which can make – to economic operators and the same public administrations – ANAC, under a dual profle (which also justifes coexistence of binding guidelines and not binding, as will be discussed below, § 4.3):
– on the one hand, by spreading the culture of partnership as a tool to overcome the economic difficulties of public administrations and to improve the efficiency and effectiveness of administrative action and by ‘mastering’ the stations that are willing to use this economic instrument more than legal;
– on the other hand, providing clear guidelines and guidelines for the effective use of the PPP tool and regulating the discretionary spaces (however necessary to handle contracts for very different services) of the contracting stations.
Par. 5. The correct definition of contractual clauses.
Coming to the examination of the individual Guidelines contained in paragraph 5, par. 5.1 makes it clear that the public private partnership contract is the main guarantee instrument for efficient performance of the contract, proper allocation of risks between the parties and maintenance of the risk economic operator for the same transfer “As well as for its correct classification in statistical and accounting terms and, in particular, whether or not inclusion of the public budget (according to the Eurostat decision of 11 February 2004 Treatment of public-private partnerships, to which it implies referral to art Paragraph 3, paragraph 1, letter eee) of the Code, which sets out the definition of a public private partnership – previously: art. 3, paragraph 15-ter, of the repealed time Code of Public Contracts as per Legislative Decree no. 163).
This line includes the recommendations made by the European Commission in the Green Paper on Public Private Partnerships and Community Law on Public Procurement and Concessions in 2004 (COM 2004, 327 of 30 April 2004, in particular paragraph 45).
(i) The Special Commission expresses appreciation for the call to the administrations of the need to include Service Level Agreements (SLAs) and Key Performance Indicators (KPIs), determined in relation to content and features of the work or service being trusted.
With particular regard to regulated sectors, where the dealer’s revenues derive from tariffs charged to service users, the Commission emphasizes the opportunity for the Guidelines to provide guidance on the possibility of referring to the Service Level Agreements and the verification of performance through Key Performance Indicators to indicators monitored by industry regulation. In such cases, it is also necessary to carefully consider the possibility of not duplicating the penalty effect already provided for by the regulation in the event of failure to obtain the required benefits.
(ii) It is also necessary to clarify the meaning of the “non-eligibility” in the last period of par. 5.1, in relation to the clauses which set a limit on the penalties applicable to the economic operator, and more generally – in the light of the foregoing, § 2 – of the meaning and scope of the appeal to the contracting authorities as to the consequences on the of the allocation of risks as a result of the provision of a fee for the availability of the work or demand for services, pursuant to art. 180, paragraph 4, of the Code.
With particular regard to regulated sectors, where the dealer’s revenues derive from tariffs charged to service users, the Commission emphasizes the opportunity for the Guidelines to provide guidance on the possibility of referring to the Service Level Agreements and the verification of performance through Key Performance Indicators to indicators monitored by industry regulation. In such cases, it is also necessary to carefully consider the possibility of not duplicating the penalty effect already provided for by the regulation in the event of failure to obtain the required benefits.
(ii) It is also necessary to clarify the meaning of the “non-eligibility” in the last period of par. 5.1, in relation to the clauses which set a limit on the penalties applicable to the economic operator, and more generally – in the light of the foregoing, § 2 – of the meaning and scope of the appeal to the contracting authorities as to the consequences on the of the allocation of risks as a result of the provision of a fee for the availability of the work or demand for services, pursuant to art. 180, paragraph 4, of the Code.
(iii) By examining further Guidelines, par. 5.2 contains a list of documents which, in order to carry out effective monitoring of the proper performance of the contractual performance, the administrations must “provide” as “minimum content of the offer” to be submitted during the relocation procedure.
This list also includes the financially-assured financial plan provided for in the Code of Project Finance (Article 183, paragraph 9), but not also for public private partnership in general (cf. Article 181). It is therefore necessary to assess the conformity of this binding rule with the primary legislation, also from the point of view of the administrative burdens imposed on the private economic operators involved in the custody procedures and the reconductability of this Guideline to the founding legal basis constituted by paragraph 4 of the same art. 181 of the Code.
iv) The same verifcation of compliance with the basis of the guidelines should be carried out in relation to 5.4, listing the “aspects” of the contract to be governed by the contracting authorities in accordance with art. 182, paragraph 2, of the Code.
(v) It is emphasized, for the purposes of the usefulness of the activity of monitoring the permanent residence of the economic operator of the risks transferred with the contract, to necessarily link the contents of par. 5.3 of the Guidelines, according to which the partnership agreement “must enclose the contract award” with the analytical obligations set out in par. 5.4.
Par. 9. Entry into force.
The Commission notes the possibility of forecasting a minimum vacatio from publication in the Offcial Journal of the Guidelines and invites the ANAC to consider the possibility of a longer period in order to allow the administrations to comply with the requirements contained therein Finally, from the point of view of drafting, it is suggested to always indicate, with the first use of abbreviations, their full meaning, accompanied, where appropriate, by double quotation in Italian and in English, as well as that of recalling articles and laws for extended (and not “art.” or “Legislative Decree 50/2016”).
In the above considerations, the favorable opinion with observations of the Special Commission with observations and conditions.
According to art. 58 of r.d. n. 444 of 1942 provides for the submission of this opinion to the DAGL (Department for Legal Affairs and Legislative Affairs), in order to point out the need for corrective action in relation to the need for a link between art. 3, paragraph 1, lett. zz), and art. 180, paragraph 8, of Legislative Decree no. 50 of 2016 (observation viii) concerning par. 2 of the Guidelines Schema).
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