CNI: no to tenders without fair compensation, ANAC resolution affects specific case


Emma Potter

ANAC calls into question a lex specialis

Said this, the CNI underlines how the Anac opinion refers to a very particular case, which calls into question a lex specialisthe one relating to the Salerno hospital case, which contains a gap specifically in reference to the application of fair compensation. Anac limits itself to saying that it is not possible, in this specific case, to activate the heterointegration mechanism of the tender notice. On the other hand, Law n.49/2023 states that, in the event of an excessive reduction, the contract is not void but only the value clause. What Anac claims, therefore, is correct. The tender cannot be cancelled, but challenged subsequently by the successful tenderer in civil court.

CNI: it is wrong to consider the case as a general rule

Once again, therefore, we are faced with a very particular step which it is wrong to make it a general rule. The CNI reiterates, once again, that the law on fair compensation is as clear as water. It states with great simplicity that it applies to PAs and that clauses that introduce reductions on the starting price or on the outcome of the tender are not valid. Wanting to force different interpretations due to abstruse reasoning on the specificity or prevalence of rules, which are also non-existent, represents exclusively an arbitrary interference and distortion of a precise and unanimous parliamentary will.

Those against fair compensation

Furthermore, the CNI must note how more and more subjects are becoming involved arguing against the application of fair compensation because, according to them, this would have a unsustainable impact on the cost of the works. In this regard, it may be useful to reiterate some elements. In Italy in recent years we have arrived at the paradox whereby, while professional fees were abolished and a court established that complex urban planning could also be paid 1 euroseveral professionals were challenged by the Revenue Agency for fees for the various services considered not appropriate.

Italy risks losing an entire sectorthat of civil engineering, because no one is available to take on anymore responsibility (civil, criminal, administrative, sometimes treasury) in exchange for compensation smaller and increasing design complexity. Today, projects have a thousand more complexities due to the many regulations on BIM, CAM, European rules, environmental constraints, climate change, structural and safety problems. At the same time, fees are decreasing due to reductions that have reached up to 70 or 80% of the rate.

The Fair Compensation rule attempts to restore balance between strong professionals and clients, who normally dictated the line unilaterally. Speaking of figures, then, it is good to note that the technical costs are worth on average 10-15% of the value of the work. Applying a discount of even 40% to them means saving only 4-5% of the value of the work. All this in the face of a less in-depth project or one compiled by less qualified technicians. Continuing to squeeze designers contributes to putting in place less valid projects, which also less guarantee the safety of construction sites and the quality of works which during their useful life absorb up to ten times the cost of construction for management. Not to mention that, in the long run, we will arrive at a general impoverishment of the category of technicians, which no longer sees students enrolled in the relevant university courses and which is already unable to cope, on a numerical level, with the needs of the market.

It is necessary to clarify the relationships between fair compensation law and public contract rules

Finally, the CNI takes note of the request, made during the hearing in the Chamber by the President of Anac Giuseppe Busia, to clarify the relationships between the Fair Compensation Law and the rules on public contracts. The National Council positively judges any further investigation that can dispel any residual doubts and defines the modus operandi even in very particular cases such as the one in question. In this regard, the National Council will have a discussion with President Busia in the next few hours, in order to work together to overcome the last doubts on the matter.

Press release by Antonio Felici, head of the Press Office of the National Council of Engineers