Fees for engineering and architecture services

The amounts to be put out to tender for engineering and architecture services are determined by reference to the ministerial fee framework, and the related tables are mandatory. Their mandatory character makes the tender basis verifiable and contestable.

The national anti corruption authority ruled to this effect in a pre litigation opinion, clarifying that the ministerial tables for determining fees are the reference the contracting authority must follow. The opinion can be cited in a clarification request.

The ruling arose from a concrete case worth recounting because it illustrates the reach of the principle. A notice for the award, through a framework agreement, of services comprising preparation of the feasibility design and the detailed design, safety coordination and works supervision provided for a maximum lump sum for the preparatory work needed to apply for funding, with payment for the design work conditional on the funding application succeeding and with no obligation to proceed to full design if it did not.

Two operational consequences follow from the principle. One concerns challenging the notice, the other checking in advance.

A notice putting out an amount not determined under the tables is contestable. The challenge must be brought within the periods for challenging the notice.

A practice receiving an invitation can verify that the basis is correct before submitting a tender, and that verification is a calculation rather than an opinion. The check is done by applying the tables to the subject matter described.

One precondition should be flagged: determination under the tables applies to all fees, above and below the direct award threshold. There is no value band in which the authority may set the basis freely.

Here sits the point on which most general sources are incomplete, and which a practice must know because it concerns half of what it invoices. It concerns non design services.

The corrective decree changed the calculation method, and the result is a dual regime. One regime applies to design work, the other to non design services.

Type of service	Applicable regime
Services relating to design	Annex I.13 to the code, with the fee framework updated and reorganised around the two design stages
Services not relating to design	Ministerial decree of 17 June 2016, which remains in force pending a new instrument

The second regime is transitional but fully operative. For services not relating to design, the calculation is carried out using the parameters and coefficients currently in place for the various services under the 2016 decree.

Typically falling within that second category are works supervision, safety coordination, final inspection and the connected technical and administrative activities, which for many practices make up a substantial share of public turnover. The applicable regime must therefore be checked service by service.

The practical consequence is that a mixed commission, covering both design and non design services, is now calculated under two distinct regimes within the same award. The calculation must be run separately for the two components.

For design work, the fees due for the design stages to be put out to tender are determined by updating the fee framework contained in the table of the 2016 ministerial decree. The updating follows the method the annex defines.

What the corrective decree changed is not the coefficients but their distribution. The annex sets out the coefficients for the codes of the various deliverables, which are the same as under the earlier decree, but organised around the new division into two design stages rather than three, namely the technical and economic feasibility design and the detailed design.

The calculation therefore proceeds in two steps. One identifies, on the basis of the relevant design stage, which deliverables are covered by the award, which the annex places in the two different stages. One then enters the corresponding codes into the fee calculation.

The reorganisation has a consequence a practice meets concretely: deliverables that under the earlier system belonged to the intermediate design stage have been redistributed between the two remaining stages, and checking which codes now fall within each stage is a necessary step that cannot be deduced from experience gained under the previous regime. The codes should be checked against the annex rather than from memory.

Three checks precede the financial tender and can all be carried out on the documents. They concern the tender basis, the applicable regime and the deliverables required.

Whether the basis is correct against the fee framework. This is the check that establishes whether the amount put out to tender was determined under the tables or estimated freely.

Whether the split between the two regimes is correct. On a mixed commission the design share and the non design share follow different regimes, and a calculation carried out entirely under one of them produces a divergence.

Which deliverables are covered by the award. Since the fee is built on the codes of the deliverables actually required, a list of deliverables wider than the one remunerated is a point to raise through a clarification request.

Assuming the tender basis is not open to question is the first, and gives up a verification the rules make possible. The check costs a few hours and can change the value of the award.

Applying Annex I.13 to non design services as well is the second, and ignores the transitional regime still in force. The two regimes produce different amounts for the same service.

Reusing the allocation of deliverables across the three earlier design stages is the third, and produces a calculation built on a superseded structure. The structure of the stages has changed and must be re checked.

Not raising a divergence between deliverables required and deliverables remunerated is the fourth, and transfers an unpaid burden onto the practice. A clarification request is the means by which such a divergence gets corrected.