17/05/2023 – The monitoring activities of bridges and viaducts are part of the engineering and architecture services. They must therefore be entrusted to professionals with a tender or with procedures compliant with the legislation on public contracts.
This is the conclusion reached by the National Anti-Corruption Authority (ANAC), which has slammed a Province for having entered into an agreement with two universities instead of starting an award procedure pursuant to the Procurement Code.
The activity consists in scanning the bridges, with a dual interest of safety and scientific research.
The memorandum of understanding between the Province and the University was adopted on the basis of article 15 of Law 241/1990, explaining that the collaboration is aimed at the municipality public interest of safety improvement.
In 2022, Oice filed a complaint, reporting a violation of the principle of competition. According to the Oice, the prerequisite for using the agreement between administrations was lacking, ie the presence of a common objective. In his opinion, it was a question of an assignment of services and not a joint exercise of public functions.
Of a different opinion the Province, which underlined the scientific interest of the Universities which, through experience, would have benefited from a vast database on bridges and viaducts to develop scientific research on technical and managerial aspects.
The Province then justified the non-publication of the memorandum of understanding with an error in the computer system.
The financial movements between the participants in the agreement, he added, are only a reimbursement of expenses, while the payment of a consideration is excluded.
At the same time, collaboration cannot turn into an artifice for circumvent procurement rules.
With regard to the presence of a common public interest, Anac found that some activities comply with the agreement between administrations. This concerns the training of the Province’s personnel and support for research and the cataloging of data, which can be traced back to the teaching and consultancy activities that universities can carry out through contracts and agreements with public bodies.
As regards other activities, such as the monitoring of bridges and viaducts, visual inspections, the census of the works and the production of periodic reports, the public interest belongs only to the Province.
These last activities, according to the Anac, constitute engineering services which do not have a close connection with the teaching and scientific research tasks of universities.
These are services, concluded the Anac, which must be performed by engineers and architects according to the procedures of the Procurement Code, therefore with the appropriate tender procedures.
Perplexity was also raised by the point of the agreement which provided for the possibility for universities to make use of external personnel, specialized structures and laboratories. According to the Anac, there would be an indirect assignment of services, without any possibility of checking the reliability of the operators.
The Anac has also evaluated the corresponding provided for in favor of the Universities, equal to 760 thousand euros and judged that, given the amount of inspections to be carried out, it was effectively a reimbursement of expenses. However, even in the absence of a profit margin for the universities, part of the payment would have occurred in advance of the reporting of the costs incurred, thus qualifying as consideration and no longer as reimbursement of expenses.
This is the conclusion reached by the National Anti-Corruption Authority (ANAC), which has slammed a Province for having entered into an agreement with two universities instead of starting an award procedure pursuant to the Procurement Code.
Monitoring bridges and viaducts, the case
In 2021 the Province of Verona approved a memorandum of understandingnot published on its website, with the Universities of Padua and Brescia for carrying out research activities on the management, classification, evaluation, control and monitoring of bridges, viaducts and works of art present on the provincial road network.The activity consists in scanning the bridges, with a dual interest of safety and scientific research.
The memorandum of understanding between the Province and the University was adopted on the basis of article 15 of Law 241/1990, explaining that the collaboration is aimed at the municipality public interest of safety improvement.
In 2022, Oice filed a complaint, reporting a violation of the principle of competition. According to the Oice, the prerequisite for using the agreement between administrations was lacking, ie the presence of a common objective. In his opinion, it was a question of an assignment of services and not a joint exercise of public functions.
Of a different opinion the Province, which underlined the scientific interest of the Universities which, through experience, would have benefited from a vast database on bridges and viaducts to develop scientific research on technical and managerial aspects.
The Province then justified the non-publication of the memorandum of understanding with an error in the computer system.
Bridge and viaduct monitoring is an engineering service
With Resolution 179/2023, the Anac reiterated, as already explained in the past, that the agreement between Administrations is justified in the presence of a common public interest, which must be pursued as the main task.The financial movements between the participants in the agreement, he added, are only a reimbursement of expenses, while the payment of a consideration is excluded.
At the same time, collaboration cannot turn into an artifice for circumvent procurement rules.
With regard to the presence of a common public interest, Anac found that some activities comply with the agreement between administrations. This concerns the training of the Province’s personnel and support for research and the cataloging of data, which can be traced back to the teaching and consultancy activities that universities can carry out through contracts and agreements with public bodies.
As regards other activities, such as the monitoring of bridges and viaducts, visual inspections, the census of the works and the production of periodic reports, the public interest belongs only to the Province.
These last activities, according to the Anac, constitute engineering services which do not have a close connection with the teaching and scientific research tasks of universities.
These are services, concluded the Anac, which must be performed by engineers and architects according to the procedures of the Procurement Code, therefore with the appropriate tender procedures.
Perplexity was also raised by the point of the agreement which provided for the possibility for universities to make use of external personnel, specialized structures and laboratories. According to the Anac, there would be an indirect assignment of services, without any possibility of checking the reliability of the operators.
The Anac has also evaluated the corresponding provided for in favor of the Universities, equal to 760 thousand euros and judged that, given the amount of inspections to be carried out, it was effectively a reimbursement of expenses. However, even in the absence of a profit margin for the universities, part of the payment would have occurred in advance of the reporting of the costs incurred, thus qualifying as consideration and no longer as reimbursement of expenses.
Source: Le ultime news dal mondo dell'edilizia by www.edilportale.com.
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