Public procurement and PPP
Legislation
Is the legislation governing procurement and PPP general or specific?
General public–private partnership (PPP) rules are provided in Legislative Decree No. 50/2016 (the Public Contracts Code). The relevant legal framework is completed by a number of secondary sources, which include ministerial decrees and guidelines issued by the National Anti-Corruption Authority, aimed at providing detailed rules on specific matters.
As for projects and works concerning Italian seaports, article 18-bis(5) of Law No. 84/94 sets out a specific regulation governing procurement and PPPs, providing that for the construction of port works Port System Authorities (PSAs) may resort to forms of private equity participation, based on the discipline of project financing referred to in article 183 of the Public Contracts Code, also entering into medium- and long-term loan agreements.
Article 183 of the Public Contracts Code also provides that private operators and specific institutional investors may submit project financing proposals to the competent authorities, including concession agreement schemes, a feasibility study of the project concerned, and related economic and financial plans. These proposals, should they be considered to be of public interest, will be the reference documents based on which the subsequent procurement procedure will be called by the competent contracting authority.
Proposal consideration
May the government or relevant port authority consider proposals for port privatisation/PPP other than as part of a formal tender?
Yes, relevant PSAs may consider private investors’ proposals for port PPPs, as regulated by article 18-bis(5) of Law No. 84/1994 and article 183(15-19) of the Public Contracts Code, which include a private negotiation procedure. A tender notice for the award of the relevant build–operate–transfer (BOT) concession will, in any case, follow the project’s feasibility evaluation and its approval by the PSA.
Joint venture and concession criteria
What criteria are considered when awarding port concessions and port joint venture agreements?
The criteria for the PSA to award port concessions are set out in the Italian Code of Navigation (ICN) (article 36), as far as port concessions that do not involve the use of port docks are concerned, and in article 18 of Law No. 84/1994, as far as concessions of port terminals (surrounding area and relevant dock) to stevedoring and warehousing companies are concerned. PSAs’ specific regulations provide detailed rules on the matter.
Briefly, the granting of the concession is divided into three phases: presentation of the application to the competent office, accompanied by adequate technical documentation; preliminary activity; and the final measure. In the preliminary phase, also including publication of the application pursuant to article 18 of the Regulation for Implementation of the ICN, the opinions provided for by rules and regulations will be acquired, where necessary, both from the PSA and from external bodies. The preliminary investigation is concluded with the opinion of the management committee. Once the investigation has been successfully completed, the concession is issued (drafting of the concession agreement, payment of the fee, payment of the deposit, signing of the agreement) and the maritime state concession is registered with the registry office at the Revenue Agency. If the application is not accepted, a decision of refusal is issued. In the event that the same port land or dock, or both, is subject to more than one concession request, it will be subject, pursuant to article 37 of the ICN, to a comparative assessment.
Model agreement
Is there a model PPP agreement that is used for port projects? To what extent can the public body deviate from its terms?
Yes, such model was approved by the National Anti-Corruption Authority with Resolution No. 1,116 of 22 December 2020 and with the Resolution of the State General Accountant No. 1 of 5 January 2021. The use of such a draft is now recommended, but the PSA can deviate from its terms.
Approval
What government approvals are required for the implementation of a port PPP agreement in your jurisdiction? Must any specific law be passed in your jurisdiction for this?
A wide variety of national and local approvals are required for the implementation of a port PPP agreement in Italy, including the possible approval by the national and EU antitrust authorities.
The approval of projects by the contracting authorities shall be made according to the conferenza di servizi, which is a formal agreement among the public administrations involved in the proceedings, with internal rules and purposes, for the approval of the feasibility of projects. The procedure of the conferenza di servizi is established by article 27 of the Public Contracts Code and article 14-bis of Law No. 241/1990.
No specific law shall be passed.
Projects
On what basis are port projects in your jurisdiction typically implemented?
Port projects in Italy are based on the BOT model. The concession agreement between the grantor (ie, the PSA) and the concessionaire (ie, the operator of the port facilities and terminal) will define the extent to which the concessionaire will build, operate and transfer the port facilities and terminal, and the duration of the concession.
Term length
Is there a minimum or maximum term for port PPPs in your jurisdiction? What is the average term?
The duration of PPP BOT concessions is limited and is determined in the concession agreement by the PSA according to the works undertaken and services provided by the concessionaire (article 168 of the Public Contracts Code). The same is commensurate with the value of the concession, as well as the organisational complexity of the object of the concession.
The maximum duration of the concession cannot exceed the period necessary for the recovery of investments made by the concessionaire as a result of the operational and business plans. To this end, the PSA shall also take into account the programme of operation submitted and the commitments taken for the concession’s purpose.
On what basis can the term be extended?
The term of the BOT concession can be extended in the event that the concessionaire has, during the management of the port facilities and terminal, sustained further investments, acquired new traffic and increased occupancy levels compared to the commitments it had assumed at the time in which the concession was originally granted.
Fee structures
What fee structures are used in your jurisdiction? Are they subject to indexation?
Concession fees are calculated as a fixed land rent and are directly collected by the PSA.
The measure of the fee is subject to annual update set by the Ministry of Sustainable Infrastructures and Mobility on the basis of the ISTAT Index (ie, the index for consumer prices for families of workers and employees, and the corresponding values for the wholesale market).
Exclusivity
Does the government provide guarantees in relation to port PPPs or grant the port operator exclusivity?
Terminal operators whose concessions have been granted on the basis of article 36 of the ICN or article 18 of Law No. 84/1994 enjoy exclusivity in the use of the port land and the docks area that is identified and granted in the concession agreement.
Other incentives
Does the government or the port authority provide any other incentives to investors in ports?
No. The only incentive is related to the reduction of fees up to 50 per cent on the basis of a PPP scheme (or concession granted), in which case the concessionaire invests in tangible assets (ie, the construction of port facilities).
