Guideline proposal: “the contracting authorities monitoring the economic operator’s activities in public-private partnership contracts”
The 10th of June 2016 the National Anti Corruption Authority has submitted for public consultation a document named “Contracting authorities monitoring the economic operator’s activities in PPP” for the purposes of applying the guidelines as provided for in art. 181, paragraph 4 of the Code.
After this consultation and after having interviewed the Ministry of Economy and Finances, the Board of the Authority has approved, on 1 February 2017, the outline of these guidelines, which has also been transmitted to the Council of State to undergo their judgment and has also been sent to Commission VIII – Public works, Communications of the Senate of the Republic and to Commission VIII – Environment, Territory and Public Works of the Chamber of Deputies. Once the Authority will receive the feedback, it will proceed with the approval and publishing of the final document.
The document is divided into two sections: the first part includes non-mandatory recommendations (as provided for in art. 213, paragraph 2, of the Legislative Decree no. 50/201) for the identification and assessment of the risks linked to PPP contracts, whereas in the second part there are all the mandatory provisions to monitor the economic operators’ activities that are executing the PPP contract.
According to these guidelines, the main tool that should be used to support the operators in the procedure preceding the awarding of a PPP contract, as provided for in art. 181, paragraph 3, is the so-called matrix of the risks, which is a chart where all the types of risks linked to a given project in PPP are identified together with the odds they can occur, the economic and time consequences of their appearance, the mitigation tools suggested and the attribution of these latter to the competences of a public or private subject.
In regard to the monitoring of the economic operator’s activity, the guidelines are requiring a strict regulation of the contractual clauses, the attachment of the awarded offer to the contract, the use of the matrix of risks during the execution in order to verify if the clauses have been formulated in a way that is guaranteeing a correct distribution of the risks, the definition of the data the operators have to provide to the Administration and the contracting authority that has to periodically deliver a economic-management report of the execution of the contract.