The thresholds governing access
The financial scale of technical services places them, in most cases, below threshold. Access therefore runs through lists and invitations more than open notices.
Direct award is permitted for services and supplies, including engineering and architecture, for values below 140,000 euros. Above that and up to the EU threshold, the negotiated procedure without a notice applies, with at least five operators consulted.
One point deserves isolating because it is counter intuitive. The EU threshold for services and design contests is 140,000 euros for central government authorities and 216,000 euros for sub central administrations. For a commission put out by a municipality there is therefore an intermediate band, between 140,000 and 216,000 euros, that remains below threshold and is awarded by negotiated procedure. For a ministry that same band is already above threshold.
The value of the services is also determined in proportion to the value of the works to be designed, which means the applicable band depends on the size of the project rather than on any negotiation with the client. The band therefore follows from the project and not from agreement between the parties.
The operators admitted
Article 66 identifies the parties admitted to procedures for awarding architecture and engineering services, asserting the principle of non discrimination on the basis of legal form. The stated purpose is the widest opening to competition and equal access for the different categories of party.
| Category | Content |
|---|---|
| Providers of engineering and architecture services | Sole and associated professionals, professional partnerships, engineering companies, consortia, European economic interest groupings and temporary groupings among them |
| Professional partnerships | With the requirements the annex identifies |
| Engineering companies | With the requirements the annex identifies |
| Providers established in other member states | Formed in accordance with the law of their own state |
| Temporary groupings | Formed by the parties in the preceding categories |
| Stable consortia | Of professional partnerships and engineering companies, including in mixed form, made up of no fewer than three members having operated in the engineering and architecture services sectors |
The statutory definition is broad and deserves attention: providers of engineering and architecture services are those who render to public and private clients, operating on the market, engineering and architecture services together with the technical and administrative activities and economic and financial feasibility studies connected with them. The breadth of the definition widens the range of services that count.
The Part V requirements
To take part in procedures the parties identified must hold the minimum requirements set out in Part V of Annex II.12 to the code. The requirements vary with the category of operator.
The annex largely restates the previous ministerial regime, which has a useful practical effect: material prepared by a practice under the earlier regime remains largely usable, with the necessary updating of legislative references. The references are still worth checking before reusing an existing file.
One qualification concerns temporary groupings. The annex provides that for groupings formed by the parties identified in article 66 the requirements set out in the annex must be held by the members of the grouping, under the allocation rules the regime lays down.
The concession for recently formed companies
One provision has direct value for practices that restructure into corporate form. It concerns the first five years from formation.
For a period of five years from their formation, companies may document the economic, financial, technical and organisational requirements sought by the notice by reference also to the requirements of their partners, where formed as a partnership or cooperative, or of their technical directors or of professionals employed on permanent contracts, where formed as a limited company. The corporate form determines which persons may be relied on.
The rationale is evident: to prevent the move from an individual or associated professional structure to a corporate form from wiping out the accumulated track record. Without this provision restructuring would wipe out demonstrable experience.
For a practice considering a corporate reorganisation this is information with immediate practical effects, because it delimits the window within which personal experience remains usable by the new company. The window runs from formation and not from the start of activity.
The organisation chart and the working team
One procedural aspect generates recurrent litigation and is worth keeping under control. It concerns the organisation chart and the composition of the working team.
Economic operators, including temporary groupings, may take part in procedures for architecture and engineering services where they have an organisation chart made up of persons directly involved in the professional and technical functions the procedure requires, within which must be identified persons linked to the operator by a stable and continuous relationship. The stability of the relationship is verified against documents.
A rule follows that case law applies strictly: the members of the working team must coincide with the persons listed in the organisation chart. Naming, in the working team, a person not present in the organisation chart in the sense the rules require has been held to render the award unlawful.
The operational point is one of internal process: the organisation chart should be built and kept updated as a standing document of the practice, and the composition of the working team for each procedure checked against it before filing rather than afterwards. A check made after filing can no longer be remedied.
Economic assessment is a qualifying service
One line of administrative case law deserves isolating because it widens what a practice may rely on. It concerns economic assessment work.
Design work is not only conceiving the project and producing the drawings, but also includes assessing the project in economic and financial terms. That conclusion follows from article 66 itself, which includes among the services capable of qualifying operators in engineering and architecture the assessment of technical and economic soundness, and therefore also the determination of the project's cost items.
For a practice carrying out estimating work and preparing the bill of quantities this is direct recognition: those services qualify for the purposes of the requirements, and should be documented in the track record on the same footing as design in the narrow sense. The track record should therefore be reorganised to bring those services out.
The most frequent errors
Composing the working team with people not in the organisation chart is the first, and is the one case law penalises most severely. The inconsistency can be checked in minutes against the documents filed.
Applying the central authority EU threshold to a municipal commission is the second, and removes an intermediate band of procedures that remain below threshold. The intermediate band covers a substantial share of technical commissions.
Not presenting economic assessment work in the track record is the third, and artificially reduces the demonstrable portfolio. The services should be documented with the instruments that evidence them.
Overlooking the five year window after a corporate reorganisation is the fourth, and can cost the usability of accumulated experience. Bids are worth scheduling with the expiry in mind.
Note: the legislative references in this page relate to Italy and are current as at the date of publication. The requirements are contained in an annex to the code amended by the corrective decree and case law on the organisation chart is developing: the text in force and the tender documents of the individual award should be checked before any operational use.