In March 2019 the Italian Ministry for Infrastructures and Transports (Ministero delle infrastrutture e dei Trasporti, “MIT”) issued the new guidelines on the award of concessions for port-towage [1].
Such guidelines have been long awaited, in particular due to the need for revising the previous provisions on the subject[2] arisen ever since the entry into force of the Italian “New Public Procurement Code (“Nuovo Codice Appalti”)”[3] , which provides for a specific legislation for concessions of services applicable also to concessions for port towage services. So much so that, pending the processing of these guidelines, all administrative procedures for the selection of concessionaires of port towage service had been suspended (with the relevant consequences in terms of “freezing” of acquired positions and limitation of competition in the market).
The content of the circular laying down the guidelines at issue (MIT Circular No. 11 of 19.03.2019) has remained to a very large extent (with the exception of a few changes, which we will report) the same as that of previous MIT circular No. 13961 of 19.12.2013.
However, due to the importance of the topic, we deem it useful to take this opportunity to carry out a global (even though necessarily concise) analysis of this legislation, which we will begin by examining the recitals of MIT Circular No. 11 of 03.19.2019 and the first provisions of said measure regarding the procedures for the identification of a concessionaire and the award of concessions. In the next issue of our Shipping and Transport Bulletin we will further develop this subject, moving to the analysis of the rules laid down by the aforesaid circular (with regard, in particular, to the requirements for the participation in tenders and to the criteria for the evaluation of the offers).
First of all, the recitals of the above-mentioned circular confirm that the port towage service is a service of general interest – aimed at ensuring the safety of navigation and mooring – carried out within a closed and regulated market (i.e.: on the basis of a concession and with tariffs established by the Maritime Authority).
Hence, emphasis is placed on the reasons according to which the granting of a concession for port towage services to a sole entity would be the most efficient solution, i.e. the solution that best ensures adequate quality and safety standards at the lowest cost. These reasons include the fact that the port towage service is a universal service carried out within a closed market, in which the size of the offer depends on the safety standards set by the Maritime Authority, and that the demand is substantially independent of the supplier’s entrepreneurial decisions (so-called derived demand).
Indeed, according to the MIT, any competition in the port towage market would not only be inefficient in ensuring the minimum safety standards (since concessionaries might be unable to bear their own costs[4] ), but also “destructive” for concessionaries, who might be forced to work below cost (being unable to autonomously decide, by virtue of the principle of universality of the service, to perform only the most cost-efficient services).
The monopoly scenario so created (which, in MIT’s opinion, is in line with the principles of Regulation (EU) 2017/352 and permitted according to the relevant case-law) imposes that the competition phase for the access to the market receives the utmost attention. In this respect, the guidelines generally opt for a “restricted procedure” system, with the pre-selection of competitors meeting the participation requirements set out in the call for tenders and the adoption of the criterion of the most economically advantageous offer.
According to the MIT, this approach should also allow the simplification of the preliminary activity when evaluating offers. This is valid, in particular, to the extent that calls for tender can (rectius: must) be “tailored” to the specific need of each port.
As far as the maximum duration of concessions is concerned – given that the “New Public Procurement Code” provides that the duration may not exceed “the time necessary for the concessionaire to recoup investments, identified on the basis of criteria of reasonableness, together with a return on invested capital, taking into account the investments necessary to achieve specific contractual goals as resulting from the economic and financial plan” – said duration is indicatively set at fifteen years in order to strike a balance between the need to protect safety measures and the operational risks of concessionaires.
First of all, it is provided that, at least 12 months before the expiry of the concession, the Maritime Authority responsible for issuing the license, in agreement with the Port System Authority and involving the associations of providers and users of the service, must define the basic organization of the service to be tendered (indicating, for example, the number of tugboats required and service hours). In this respect, it is expressly clarified that “the definition of the service organization is the basis for the structure of the tender strategy”.
Moreover, during this phase, the Maritime Authority must examine the ratio between the average turnover of the last two years and the cost of the service. This is in order to verify that there is no imbalance such as to highlight the need for a reorganization of the service.
As far as the publication of the call for tender is concerned, reference is made to the provisions of the “New Public Procurement Code”[5] (see, first of all, articles 72 and 73), suggesting also – due to the complexity of the subject – to indicate, in the invitation letters, a deadline not shorter than 30 days for the submission of tenders.
The call for tender shall include, in particular, the “evaluation grids” of the offer (grids forming the first Annex to the circular at issue, which we will further analyse when dealing with the evaluation criteria of the tenders).
As already mentioned, for awarding purposes the criterion of the most economically advantageous offer is established, without prejudice to the Administration's right not to proceed with any award in the absence of an adequate offer. In this latter case (as well as in the case that no offers are submitted), the negotiated procedure provided for by article 63, paragraph 6, of the “New Public Procurement Code” shall apply.
A series of technical/procedural provisions follow regarding the conduct of biddings on which - for reasons of brevity - we cannot dwell here. However, we wish to highlight a point – with respect to the documentation that must accompany the offer - that we deem relevant. Indeed, among the requested documents there is also “a declaration that gives account of the existence of any relationship, even de facto, that determines a connection or a control similar to those provided under art. 2359[6] of the Italian Civil Code with respect to a user holding a relevant position with regard to the demand of towage services in that port”.
According to the circular, the rationale of this provision is to avoid that any link – between the competitor/concessionaire and a user with a dominant position in the demand for the service – may adversely affect the achievement of the safety goals that define the towage service as a public service of general interest.
In this perspective, the guidelines at issue recommend that any such links be taken into account – both when evaluating offers and when performing a concession contract, verifying in particular, in the latter case, that the equal treatment of users by the concessionaire is actually ensured.
This provision could give rise to some concern in so far as the same could apparently potentially breach the principle of equal treatment (let’s think, for example, of the position of the competitor seeking to obtain the concession and being consequently “evaluated” in this particular respect). Given that rules and powers to prevent abuse or unfair conduct on the part of the concessionaire already exist, this provision may appear excessive with respect to the rules laid down by the circular under consideration.
Finally, with reference to the “conclusive” phase of the tender procedure, it is provided that the Awarding Commission must open, in public session, the envelopes containing the administrative documentation and proceed with their examination, and open the envelopes containing the technical offers (which will then be evaluated in private sessions). Still in public session, the Chairman of the Commission shall read the scores assigned to the technical offers and open the envelopes containing the economic offers, attributing the additional scores for the purpose of the final ranking and for the provisional award.
The Commission will then send the deed of identification of the highest bidder and all the tender documents to the Head of the maritime department so as to enable the same to carry out the checks necessary for the final award. Once the award is final, the concession deed is issued. Said deed will then be sent to the Italian Court of Auditors for registration, and, subsequently, the concessionaire will be placed in service (subject to the payment – inter alia – of a share of the annual fee and of the insurance policy). When the new concessionaire is put into service, the prices set by the Head of the Maritime Department for this purpose will also enter into force.
After this introduction, in the next issue of our Shipping and Transport Bulletin we will examine, in particular, the requirements to participate in tenders and the criteria for evaluating offers set forth by the new guidelines for the award of concessions to provide port towage services.
This article is for information purposes only and is not intended as a professional opinion. For further information, please contact Simone Gaggero.
[1]Italian Ministry of Infrastructures and Transports’ Circular No. 11 of 03.19.2019.
[2]In particular, as we will see, the Italian Ministry of Infrastructures and Transports’ Circular No. 11 of 03.19.2019
[3]Legislative decree No. 50 of 04.18.2016.
[4]Said costs would be mainly fixed and semi-fixed (such as invested capital and labour cost) rather than variable (such as fuel).
[6]Pursuant to art. 2359 of the Italian civil Code: “the following are considered controlled companies (1) companies in which another company holds the majority of the votes that can be exercised at the ordinary shareholders’ meeting; 2) companies in which another company holds sufficient votes to exercise a dominant influence at the ordinary shareholders’ meeting; (3) companies that are under the dominant influence of another company by virtue of particular contractual ties with it. For the purposes of applying numbers (1) and (2) of the first paragraph the votes assigned to controlled companies, to trust companies and to an interposed person are also included in the computation: the votes available on behalf of third persons are also taken into account: the votes available on behalf of third parties are not taken into account. Companies over which another company exercises a considerable influence are considered affiliated companies. Said influence is presumed when at least one fifth, or one-tenth if the company has shares listed on a regulated market, of the votes can be exercised at the ordinary shareholders’ meeting”.
