Contribution by our Founding Member Prof. Raquel Carvalho, on Public Private Partnership Health Programme in Portugal – Court of Auditors’ Report.
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The Section of Autonomies of the Court of Auditors, by deliberating on an issue raised by the Regional Control Section for Lombardy regarding a tender procedure for the selection of an economic operator for the planning, execution and the maintenance of a gym, has stated that: i) the financial leasing operation for public works as provided for in art. 187 of the Legislative Decree no. 50/2016 are not considered as investments financed by debt; ii) the procedures in partnership for realization of public works and services that are not substantially corresponding to the general rule of the public-private partnership shall be considered as contracts and operations similar to a financial leasing, independently of the formal definition attributed by the parties.
OECD, Recommendation of the Council on Principles for Public Governance of Public-Private Partnerships, May 2012.
European Commission, Green Paper on public-private partnership and community law on public contracts and concessions, April 2004, COM(2004) 327.
European Commission, Guidelines for successful public-private partnerships, March 2003.
Council of State, special commission, Opinion of the 29th March 2017, n.775.
Court of Auditors, Section of Autonomies, Decision no. 15/SEZAUT/2017/QMIG, 13 June 2017.
National council of the Public accountants and of the Accounting experts, Project Financing and public-private partnership: normative aspects and guidelines, Rome, March 2016.
Ministry of the economy and finance – department of the State general accounting, A Focus on PPPs in Italy, 8th Annual Meeting of Senior PPP Officials, OECD Conference, Paris, 23-24 March 2015.
The Court of Auditors – Regional control (section for Puglia) has affirmed, in the decision no. 84/2017/PAR, that the presence of a guarantee given by the territorial entity, as set forth in art. 207 TUEL, for loans related to investments, could be the proof of the allocation of the risks on the public subject, which would exclude the possibility to consider private loans in the perspective of the public-private partnership: as provided for in art. 3, point eee) of the Legislative Decree no. 50/2016, interpreted in light of the Eurostat decision “Treatment of public-private partnerships” of 11 February 2004, the goods that are object of the partnership operation shouldn’t be registered in the Public Administrations’ accounts – as instead happens in this case – since the substantial transfer of the risk that is required in all partnership operations would otherwise lack.
The decision is in line with the new discipline of the public-private partnership established by the Code of Public Contracts and by ANAC’s guidelines, which identified in the analysis of the risks one of the main features for the proper functioning of the partnership between public and private subjects.
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.
