A lease is a consensual and bilateral agreement by which, in this context, the public party (lessor) provides to another party (lessee) the use of a real estate asset for a specific period of time and for a specific amount (rent).
The entities that own the public assets are obliged to announce a public tender in order to select the lessee.
It mainly concerns properties suited for use, required for their own development, without the need of building or town-planning amendments.
Publication of the Call for Tenders
The main phases for leasing a public asset are:
- Publication of a public tender on the institutional website of the entity that owns the asset in order to select a tenderer;
- The tender shall include all terms and conditions regulating the relationship, as well as all procedure modalities and award criteria, particularly regarding the duration of the lease.
Once the lessee is selected, the lease contract shall be regulated by civil law (Italian Civil Code or in the cases shown in Art. 27 and 42, Law no. 392 of 1978).
Exclusion Criteria and Proof of Compliance
With reference to the general requirements laid down in the current legislation for participating in public tenders, notwithstanding the requirement to verify any eventual provision of each specific call, it is necessary to specify that:
- Usually, by moral requirements, reference is made to those provided for in Art. 80, D.L. no.50 of 18/04/2016 “Code of Public Contracts”; the competitor shall prove to hold the aforementioned requirements when taking part in the call, while the competent authority shall then verify all the requirements once the tender has been submitted. More specifically, public administrations may request the following documents: a certificate issued by the Criminal Records Office or, if unavailable, an equivalent document issued by the judicial or administrative authority of the Member State or of the Country of origin in which the envisaged requirements are met; appropriate certification issued by the competent fiscal authority and, as far as social security contributions are concerned, the certificate of social security compliance automatically acquired by the public administration from social security institutions pursuant to current legislation or, if unavailable, an equivalent certificate issued by competent authorities of other States.
- Economic and financial standing, declared when taking part in the call, can be proved through one or more of the following: appropriate bank declarations or, if any, evidence of relevant professional risk’s indemnity insurance; balance sheets or extracts from balance sheets, where publication of the balance sheet is required under the law of the Country in which the economic operator is established; a statement of the undertaking’s overall turnover and, if any, of turnover in the area covered by the contract for a maximum of the last three financial years available, depending on the date on which the undertaking was set up or the economic operator started trading, insofar as the information of these turnovers is available. If, for any valid reason, the economic operator is unable to provide the references requested by the Contracting Authority, he may prove his economic and financial standing by any other document which the Contracting Authority considers appropriate.
- The technical capability of the economic operator, declared upon taking part in the call, can be proved, inter alia, by: a) a list of the works carried out over the past five years, with the sums, dates and recipients, whether public or private, involved; b) the indication of the technicians or technical bodies involved, whether or not belonging directly to the economic operator’s undertaking, especially those responsible for quality control; c) a description of the technical facilities and measures used by the economic operator for ensuring quality as well as the undertaking’s study and research facilities; the educational and professional qualifications of the service provider or contractor and/or those of the undertaking’s managerial staff, provided they are not evaluated as award criteria; e) a statement of the average annual manpower of the service provider or contractor and the number of managerial staff for the last three years; f) a statement of the tools, plant or technical equipment available to the service provider or contractor for carrying out the contract.
Deadline of the Call for Tenders
If not otherwise expressed in the call, the tender is valid for 180 days from the expiry date for the submission of the tender. This period is meant to safeguard the competitor, preventing any eventual lengthiness of the procedure to become detrimental. In case no contract has been signed after the expiry of such period, the competitor can waive his tender or confirm it, either tacitly (e.g. by signing the contract) or expressly, also following a request from the Contracting Authority. Once the tender is confirmed, the effectiveness of any eventual guarantee issued during the participation to the call shall be extended.
Identification of the Best Tender
The call is usually won by the subject who offers the most economically advantageous tender, identified on the basis of the best value for money.
The selection of the lessee usually takes 30-45 days.
In most cases, a draft lease contract is attached to the call for tenders in order to reduce negotiation times, which usually take 10-15 days.
The private investor shall bear all the costs related to the administrative verification on the property and the preparation of the tender.