The effects of Milleproroghe Decree on the legislation governing public contracts

Prepared by Annalisa Di Ruzza, Guido Ajello e Edoardo Ferrero

1. Introduction

On the last day of 2020 Decree Law no. 183 of December 31, 2020 was published in the Official Gazette and came into force on the same day.

This is the so-called Milleproroghe Decree, by which the legislator, every year, usually postpones the deadline for the application of certain legislative provisions in various sectors of the legal system.

These also include public contracts, which, despite being regulated by Legislative Decree no. Legislative Decree no. 50 dated April 18, 2016 (“Public Contracts Code”), have recently been subject to legislative amendments having a temporary effectiveness.

Reference is made, in particular, to Decree Law no. 32 of April 18, 2019, converted by Law no. 55 of June 14, 2019 (“Sblocca Cantieri Decree”) and Decree Law no. 76 of July 16, 2020, converted by Law no. 120 of September 11, 2020 (“Semplificazioni Decree”).

Article 13 of Milleproroghe Decree acts specifically on the deadline for the application of some derogatory provisions, thus extending their effectiveness also in 2021.

2. Subcontracting

The most relevant case is certainly that of subcontracting, which had been reformed by Sblocca Cantieri Decree also in consideration of the critical issues that have arisen at the level of the European Union.

Just consider, for example, the quantitative limit to subcontracting originally set by Article 105, paragraph 2 of the Public Contracts Code and declared incompatible with European Union law by the Court of Justice with the judgment of September 26, 2019 in case C-63/18: such limit had been raised to 40% as a result of art. 1, para. 18, second period, of Sblocca Cantieri Decree until last December 31, 2020.

This period has now been extended again until June 30, 2021 by Article 13, paragraph 2, letter c), of Milleproroghe Decree.

Also following this latest extension, the 30% quantitative limit for the only super-specialist categories referred to in Article 89, paragraph 11 of the Public Contracts Code remains unchanged.

The same provision of the Milleproroghe Decree also extended, this time to December 31, 2021, the exemption from the obligation to indicate the third partner of subcontractors established for public contracts by Article 105, paragraph 6 and for public concessions by Art. 174, paragraph 2, second sentence of the Public Contracts Code.

Until December 31, 2021 the checks on requirements during the tender procedure pursuant to Article 80 of Public Contracts Code relating to subcontractors are also suspended.

3. Advance payment of the price

In order to promote the availability of liquidity for contractors, Article 13, paragraph 1 of the Milleproroghe Decree has postponed to December 31, 2021 the deadline for obtaining the increase in the advance payment of the contract price provided for by Article 35, paragraph 18 of Public Contracts Code up to 30%, within the limits and in accordance with the annual resources allocated for each individual works available to the contracting authority.

In this case, the reference legislation is Article 207, paragraph 1 of Law Decree no. 34 of May 19, 2020, converted with Law no. 77 of July 17, 2020 (“Relaunch Decree”).

4. The start of planning without financing the work

With reference to the derogatory provisions of the Sblocca Cantieri Decree, Article 13, paragraph 2, letter a) of Milleproroghe Decree has extended to the entire year 2021 the faculty to start the project planning in the absence of the financing of the work introduced by Article 1, paragraph 4 of the aforementioned decree.

In particular, it is foreseen that the implementing bodies of works, for which the planning must be carried out, may start the related awarding procedures also in case of availability of funding limited to the planning activities only, with the specification that such works must be considered as a priority for the purposes of the allocation of funding for their implementation.

5. Integrated procurement for maintenance works

It should be noted that the term of application of the integrated procurement for maintenance works, which Article 1, paragraph 6 of the Sblocca Cantieri Decree had been limited to the two-year period 2019 and 2020, was also postponed until 2021. The extension was introduced by Article 13, paragraph 2, letter b) of Milleproroghe Decree.

On this point it is useful to remember that the original structure of Public Contracts Code limited the scope of application of the integrated contract to certain mandatory cases, which was extended by Sblocca Cantieri Decree also to contracts for ordinary and extraordinary maintenance works, with the exclusion of extraordinary maintenance works that provide for the renewal or replacement of structural parts of the works or plants.

Also in the current year, therefore, these contracts can be awarded on the basis of the final project consisting of at least a general report, the list of unit prices of the works, the metric-estimative computation, the safety and coordination plan with the analytical identification of safety costs not subject to rebate, while the execution of the aforementioned works can be carried out regardless of the preparation and approval of the executive project.

Let’s Talk

For a deeper discussion, please contact:

Guido Ajello

PwC TLS Avvocati e Commercialisti

Director

Annalisa Di Ruzza

PwC TLS Avvocati e Commercialisti

Director