PON School FAQ updated May 10th. Frequently asked questions include clarifications about warranties and disclosure on the MIMS (formerly MIT) website.
Some frequently asked questions
Should the documents relating to the assignment in accordance with Legislative Decree 50/2016, including the related calls and announcements, be published on the MIMS (formerly MIT) website?
From 1 June 2021, the obligation to publish the documents mentioned in Art. 29, para. 1 of Legislative Decree 50/2016, concerning the procedures for the award of public service and procurement contracts, fell (see art.53 in the Legislative Decree of 31 May 2021, n.77, conv. 108 of 29 July 2021 – the so-called simplification decree- bis).
MIMS, by providing the answer to the question of 5 October 2021, n. 1054, however, suggested that «pending indications from ANAC concerning the national database of public contracts under Art. 53 of Decree-Law 77/2021, it is believed that the acts mentioned in c. 1 of art. 29 of the Code must, carefully and in accordance with the principle of transparency, continue to be published on the MIMS platform.
In the light of the above, it is preferable that the institutes publish all the documents referred to in Art. 29, para. 1 of Legislative Decree 50/2016 concerning the award procedures in the PON area.
• with regard to the methods of drafting the executive orders, it is necessary to refer to the provisions of Art. 73 and 98 in Legislative Decree no. 50/2016. The latter postpones
Annex XIV, Part I, point D, concerning the results of the award procedure;
In fact, it should be noted that Annex XIV to the Code contains the information to be included in the notices and notices;
What conditions are required to proceed with the exemption from the definitive guarantee in the cases referred to in Art. 103, section 11, Legislative Decree 50/2016?
According to art. 103, section 11, of Legislative Decree 50/2016, there are cases where the individual contracting authority (ie the institute) can exercise the right not to request the final guarantee.
In particular, it is possible not to request the final guarantee in the event of one or more of the following hypotheses:
• contracts in accordance with art. 36, para. 2, let. a), by Legislative Decree 50/2016 (contracts for an amount of less than € 40,000.00 excluding VAT, awarded through direct transfer);
• contracts to be performed by operators with proven solvency;
• supplies of goods which, by their nature or for the specific purpose for which they are intended, must be purchased at the place of production or supplied directly by the manufacturers or products of art, machinery, tools and precision work, the execution of which must be left to specialized operators;
For the purpose of the exemption to provide the final guarantee in accordance with Art. 103, section 11, last sentence, Legislative Decree 50/2016, it is necessary that both of the following conditions are present:
improvement in the hammer price.
With reference to the requirement under (i), ie. the reasoning, this must be formalized by the Institute in a concrete document that must be attached to the case, and may relate to various hypotheses, such as contracting stations may thus summarize:
o payment of the consideration in a single installment after termination of service;
o the nature of the service to be awarded, such as not perceiving the risk of a breach on the part of the contractor;
o previous contractual relations between the contracting authority and the trusted economic operator, which show solidity, seriousness and professionalism, such as not to take into account any risk margins of default;
o small amount of the credit limit.
Regarding the requirement under (ii), a recent ANAC FAQ should be noted on the subject. (concerning the interpretation of Guide No 4), according to which the contractor stations determine this improvement after consulting the contractor and taking into account:
contract value; estimated profit margin;
costs that the contractor would incur for the acquisition of the final guarantee, in order to meet the mutual needs of the parties to limit the costs.
Based on the above, the “improvement” can be defined by starting a negotiation with the selected bidder. For example, in the case of a purchase from the catalog on Me.PA., this improvement can be achieved by sending a preliminary notice to the company, asking it, as an alternative to the deposit of the final deposit, to propose a improvement of the price and the subsequent application of the discount (ie a discount in relation to the offer in the catalog).
LINK to FAQ