The illegitimacy of the suspension clause
Object of the dispute was one Clause of the race regulations which provided for the disbursement of fees – inclusive of fees and expenses – Only in case of obtaining the loan. According to Anac, this provision is in contrast with the current legislation on public contracts, since the principle of the right and certain remuneration of professional services is undermined at the base.
The contracting authority, in fact, cannot subordinate the payment of services already made to obtain external resources: such an approach violates the principles of correctness, economy and certainty of contractual relationships.
Ministerial rates: binding parameter
In the opinion, the authority reiterates that the ministerial rates constitute binding and mandatory parameter for the determination of compensation in engineering and architecture services. This implies that the remuneration for these activities must be calculated on the basis of objective criteria and regulated and cannot be arbitrarily decided or, worse, conditioned by uncertain future events such as obtaining a loan.
In the specific case, the specification provided for a maximum flat -rate remuneration for two yearsin the face of fundamental services for the purpose of requesting funding. This setting was also considered non -compliant From Anaac herself, as it evades the application of mandatory ministerial rates.
The case of the Docfap: service to be entrusted separately
Particular attention was paid to DOCFAP (feasibility document of project alternatives)preparatory document to design and requested for the purposes of the application for funding.
Anac highlighted that this document fully falls within the services of engineering and architecture And as such it must be remunerated in compliance with ministerial rates.
In addition, the authority stressed that Docfap cannot be entrusted together with the first level of designthat is, to the technical economic feasibility project (PFTE), as it is a previous phase. As a result, the contracting authority must indirect a separate procedure for the assignment of this service.
The invitation to act in self -protection
In conclusion, with the opinion n. 102 of 19 March 2025, the Anac considered not compliant with the legislation The work of the contracting authority, which had subordinated the fees of engineering and architecture services to obtain funding.
The authority clarified that preliminary activities also must be preliminary activities must be remunerated according to ministerial rates.
Furthermore, he specified that the Docfap, as a preparatory document to the design, cannot be entrusted together with the PFTE and needs one separate procedure.
Finally, the contracting authority is invited to act in self -protection to restore procedural correctness.
