The penalties in the corrective
On the topic of penalties (delay) the corrective intervened increasing the minimum value and maximum value of the individual penalty applicable, a sign of a greater desire to preclude the behavior of the economic operator in the delay of performance. The company, therefore, undergoes one fixed economic loss and for each individual day, linked to the delay in the conclusion of the work, in the delivery of the supply or in the realization of the service.
This forecast applies to all contracts and constitutes a obligation for the contracting authoritywho must insert them in the tender documents. Others can also include, but these can only be applied by presupposing the fault of the economic operator (1). Thus, for example, the delay due to force majeure (Example: presence of demonstrators in the motorway section on which to carry out the work) cannot Never determine the application of the criminal delay.
The imposition of the penalties is the competence of the RUP and not of the works manager (which however supports in the relative procedure (2)) and these are performed by means of excussion of the definitive guarantee, At least in the public-private partnership (3).
| Art. 126 c. 1 (pre-correction) | Art. 126 c. 1 (post-correction) |
| 1 The penalties due for the delayed fulfillment are calculated in a daily extent between (0.3 per thousand and 1 per thousand) of the contractual net amount, to be determined in relation to the extent of the consequences related to the delay, and cannot however exceed, overall, 10 percent of said contractual amount. |
1 The penalties due for the delayed fulfillment are calculated by a daily extent included (Between 0.5 per thousand and 1.5 per thousand) of the contractual net amount, to be determined in relation to the extent of the consequences related to the delay, and cannot however exceed, overall, 10 percent of said contractual amount. |
Acceleration prizes as an obligation
The acceleration prizes constituted one faculty. So, while the sanction was always guaranteed, the prize was not.
This imbalance was remedied by the correctivewhich provides that the acceleration prize is now mandatory, but only in the works of works, and must be paid for every day in advance.
However, the exact determination depends on financial availability of the bodywhich uses the sums provided for the unexpected and must define the application methods of the award. Furthermore, award that is calculated by phases, but paid only to the outcome of the test.
If the ending of conclusion is extended (legitimately, therefore not because of the contractor (4))) the days in advance are calculated on the basis of the completion date of completion.
Further economic prizes, even of different nature, can be provided for the correct execution of the collaboration agreement(5).
| Art. 126 c. 2 pre-correction | Art. 126 c. 2 post-correction |
| 2. For the contracts of work the contracting authority (may predict) In the announcement or in the notice of calling of the tender which, if the completion of the works takes place in advance of the deadline contractually set, an acceleration prize for every day in advance is recognized. (The award is determined on the basis of the same criteria established for the calculation of the amount of criminals and paid following the verification of the contracting authority of the actual advance of execution, compliance with the obligations assumed and the safety and protection conditions of the workers used in the execution. In the initial tender documents, the contracting authority can reserve the right to recognize a determined acceleration prize on the basis of the aforementioned criteria also in the event that the contractual term is legitimately extended, if the completion of the works) | 2. For the contracts of work the contracting authority (provision) in the announcement or in the notice of calling of the tender which, if the completion of the works takes place in advance of the deadline set contractually, an acceleration prize for every day in advance is recognized. (The amount of the prize is commensurate, within the limits of the sums available, indicated in the economic framework of the intervention under the item “unexpected”, for the days in advance and in proportion to the amount of the contract or of the contractual services, in accordance with the criteria defined in the tender documents and according to temporal brackets and progressive performance phases, and is paid to the conclusion of the testing operations, provided that the execution of the works is in accordance with the obligations assumed and are guaranteed the conditions of safety and protection of workers employed in the execution. The contracting authority recognizes a determined acceleration prize on the basis of the criteria indicated in the second period also in the event that the contractual term is legitimately extended, if the completion of the works takes place in advance of the deadline extended. The deadline referred to in the third period is completed from the date originally foreseen in the contract) |
The prizes in the contracts of services and supplies
As has been said, the provision of acceleration prizes is mandatory are in the contracts of works.
The code specifies now that in any case the prediction of rewarding, even if not delay, is also allowed in the contracts of services and supplies, provided that they are compatible with the object of the contract, the criteria and the amount are defined.
| Art. 126 c. 2-bis (pre-correction) | Art. 126 c.2-bis (post-correction) |
| (Absent) | (2-bis. The contracting stations may provide in the announcement or in the notice of calling of the tender the recognition of rewarding even in the event of contracts of services and supplies, where compatible with the object of the contract. In this case, the contracting authority determines, in the announcement or in the notice of calling of the tender, the criteria for the recognition of the acceleration prize and for the determination of the relative amount.) |
Which poses the problem, even in the design phase, to identify it Limits, conditions and sums to usenot being foreseen (unlike in the works) a criterion, and with the risk that the official can be called to respond to the tax damage if the prize is considered not corresponding to a real need of the institution.
Even the prizes are therefore one Tool to be handled with care.
Notes
(1) Anac, resolution 17.1.2024 n. 73
(2) Annex I.2, art. 8.
(3) Art. 193 c. 15.
(4) which in this case, indeed, should be subject to criminal delay
(5) Art. 82-bis.
