Italy: New Guidelines On The Award Of Concessions For Port-Towage (Part Two)

Last Updated: 11 September 2019
Article by Simone Gaggero

Let's continue our brief analysis of the new guidelines on the award of concessions for port-towage, issued in March 2019 by the Italian Ministry for Infrastructures and Transports (Ministero delle Infrastrutture e dei Trasporti, "MIT") [9] .

In the previous issue of our newsletter, we have focused on the premises upon which these guidelines are built and on the relevant procedural provisions for the identification of a concessionaire and the award of concessions.

We are now going to analyse the information that the Administration must necessarily include in calls for tender and the requirements to participate in tenders and to subsequently deal with the criteria for the evaluation of bids.

Information to be included in calls for tender by the Administration

According to the guidelines, the Administration must necessarily provide the following information in the tender documentation:

- admitted subjective forms of participation by bidders (which are the same provided for by Article 45 of the "New Public Procurement Code" [10]);
- criteria for the evaluation of offers and relevant evaluation grids;
- criteria for the formation and adjustment of the service tariffs;
- maximum global cost of the service that may be offered in the tender;
- description of the basic organization of the service;
- requirements to participate in the tender;
- express notification that the concession is subject to the full implementation of the financial plan and compliance with the deadlines for planned investments provided for therein (it should be noted that the bidder must formally commit to comply with these terms, upon which the concession is conditional).

Moreover, the guidelines establish that bidders must be provided with all economic information useful to define the operational risk (such as, by way of example, traffic flows and all the relevant tariffs paid over the years before the tender, but also the tariffs calculation methods for the period of the concession being tendered and the related expected maximum contributive capacity that according to the relevant Administration can be borne by the concessionaire).

Furthermore, it should be noted that the tender documents must also provide (i) the bidder's obligation to indicate, in its offer, the costs for compliance with the applicable laws on health and safety in the workplace and (ii) the so-called "social clause" i.e. the successful bidder's commitment to apply the sector national collective bargaining agreements (as already set out by Regulation (EU) 2017/352) provided that said commitment is compatible with the business organization and corporate strategies of the successful bidder [11].

As far as the "social clause" is concerned, it is worth noting that – according to the Italian Council of State (Consiglio di Stato) – said clause would not represent a real requirement for the participation in the tender, but rather a method to perform the service (consequently, it would be up to the Administration to verify compliance by the concessionaire).

Requirements to participate in tenders

Given that the general participation requirements are those currently provided for by Article 80 of the "New Public Procurement Code" (by way of example, not to have been finally convicted of certain offences), we will analyse below the other requirements introduced by the guidelines.

Said further requirements may be divided into two categories: (i) those referring to economic and financial standing and (ii) those referring to technical capabilities.

As regards the former, the guidelines take into account (i) the specific turnover relating to port-towage activity (calculated on the basis of the turnover of the last two financial years preceding the tender) and (ii) solvency as certified by at least two banks or authorised intermediaries.

On the other hand, as regards the technical capabilities requirements, the bidder must prove to have (i) previous experience, i.e. to have carried out port-towage activities for 36 months in a row over the 5 years preceding the tender; (ii) availability of staff as deemed necessary by the Maritime Authority to perform the service in compliance with the applicable laws on health and safety in the workplace [12]; (iii) availability of the tugboats necessary to ensure the provision of the service on the terms set by the call for tender [13].

Tenders evaluation criteria

Tenders evaluation criteria are set by the so-called "evaluation grids". Some evaluation grids, expressly defined as indicative, and hence subject to possible modifications due to the specific needs of each port, are attached to the circular at issue.

The evaluation criteria concern technical requirements (with the aim to identify bidders that may offer the highest safety level together with the best functionality of the port structures) as well as economic requirements.

The guidelines provide for a maximum score of 75 points to be awarded to the criteria for the evaluation of the technical offer and a maximum score of 25 points to be awarded to the criteria for the evaluation of the economic offer. However, there is nothing preventing the agreement of a different ratio between the "weight" of the technical offer and that of the economic offer, provided that – in any event – the contract is awarded in compliance with the criterion of the most economically advantageous tender.

Without entering into the technicalities that characterize the calculation methods used by Administrations to decide the final score of each bidder, it is important to point out that – at the end of the evaluation process – every method should anyway lead to the award of a comprehensive final score (to be expressed in numbers) for each bidder.

In the next issue of our Shipping and Transport Bulletin we will examine the evaluation criteria for technical and economic offers provided for by the guidelines, and conclude our analysis with the examination of the criteria for tariffs determination and adjustment.

[9] Italian Ministry of Infrastructures and Transports' Circular No. 11 of 03.19.2019.
[10] Legislative decree No. 50 of 04.18.2016.
[11] This is due to the fact that the concessions at issue would not imply labour-intensive services.
[12] It should be noted that foreign members of the crew must have a knowledge of the Italian language at least equal to level B1 of the Common European Framework of Reference for Languages.
[13] Call for tenders must provide sufficient information also with regard to the fleet technical features that are deemed necessary by the Administration. On point, the fleet must be divided into two group: first lines and second lines. First lines are the tugboats necessary to the ordinary provision of the service, whilst the second lines are used to ensure the continuity of the service if one or more tugboats of the first line are temporarily unavailable (by way of example, for maintenance), or in the event of peaks in the demand or in case of emergency. The circular at issue specifies that calls for tender must establish the minimum days of activity, on an annual basis, for the first lines, in order to avoid any form of "abuse" of second lines by the concessionaire.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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