ANAC: no fair compensation for the assignment of architecture and engineering services
“According to what we learn from authoritative sources of information, the Anac, with a note dated 19 April sent to the Ministry of Economy and that of Infrastructure, expressed the opinion according to which the law onfair compensation may not be applied to the procedures for the awarding of architectural and engineering services”.
Second Inassind However “It would be aboutyet another twist that is made on the topic, which leaves the entire sector in the uncertainty of a clear and definitive answer and which overlaps, ultimately, with a recent pronouncement of the Administrative Justice – Veneto TAR ruling n. 632 of 3 April 2024 – who seemed to have said a definitive word on the subject, deciding in favor ofunconditional application of fair compensation in assignments concerning the performance of intellectual work”.
These are words taken from the note Inassindthe national association for the protection and promotion of freelance engineers and architects, signed by the president Carmelo Russo and the secretary Marco Becucci.
A shortcut on the skin of architects and engineers?
Note that it continues like this: “We do not deny the validity of the reasons given by the ANAC regarding the need to make accessible the tender procedures for young professionals and medium-small firms, preventing the judgment of the tender commissions from inevitably being based on the CVs.
We cannot even find ourselves opposed to the appeal to the Contracting Authorities to adopt behaviors aimed at encouraging the maximum participation and to avoid the adoption of discriminatory behaviour, and it is certainly true that the two regulatory areas (procurement code and fair compensation) must be adequately coordinated”.
But then he adds a clear distancing: “What we don't understand – he writes in fact Inassind – it's like, hand in hand, you choose the most comfortable, authentic path shortcut on the skin of those same subjects that it claims to want to protect, that a law is disregarded, appealing to the fact that the same does not explicitly provide for its application to the awarding of architectural and engineering services while on the other hand it is forgotten that the code of contracts explicitly provides for the application of fair compensation”.
Fair compensation entails excessive burdens for the state
Inassind asks himself again: “what about the rationale according to which fair compensation entails excessive burdens for the State: if true, she is certainly not the only one to predict them! Do we then disapply all laws that entail excessive burdens for the State?”.
Then in the note the association insists as follows: “if fair compensation does not apply, as a direct consequence it must be understood – and how could it be otherwise – that the applicable compensation is not fair. It cannot be forgotten that the enactment of the Fair Compensation law was preceded byabolition of minimum tariffsfrom an authentic deregulation which has also led to requests – and unfortunately to offers – of services free of charge, to steep discounts during tenders, to assignments with compensations that are absolutely inadequate compared to the services requested.
This too should have been and should continue to be a cause for concern and alarm in the name of the same reasons today put forward by ANAC: certainly in the name of that quality of services which is also one of the concerns of the note sent to the Ministries. However, no concern seems to emerge in this regard. Do excessive discounts and free services represent competition protection? Or rather – in the long run – a way to exclude it? Can excessive reductions be “absorbed” by the activity of young professionals and/or medium-small professional firms? It is contradictory to think that the freedom to offer a lower price favors competition tout court: it is overlooked that in reality it favors those who can afford to lower – even significantly – the economic level of the market and, consequently, determine the disappearance of subjects who are not in capable of withstanding the downward comparison, determining, in fact, in conclusion, the end of all competition”.
Participation and adequate levels of quality and compensation: possible solution to the problem
Then, in closing, the association's proposal: “The solution is to find a way that can hold together participation and adequate levels of quality and compensationperhaps more complex and less simple than the tout court application of fair compensation, but certainly also different from its denial of the reintroduction of a deregulation which, through the competition of those who can afford it, determines, in fact, the monopoly, if not of specific subjects, certainly of their specific category”.
