Prepared by Guido Ajello, Claudio Costantino and Arianna Mariani
On June 30, the Council of Ministers approved the draft that would delegate to the Government (“Procurement Delegation Law”) the adoption of one or more legislative decrees on public contracts with the purpose of rationalizing, reorganizing and simplifying the current Legislative Decree no. 50 of 18 April 2016 (“Public Procurement Code”).
The Procurement Delegation Law is part of the implementation of the National Recovery and Resilience Plan (“NRRP” or “Plan”) – covered in earlier newsletters of 03 May, 09 June and 15 June 2021 – focusing, in particular, on the so-called “regime measures” envisaged by the Plan and already partially introduced by Decree Law no. 77 of 31 May 2021 (so called “Semplificazioni bis”).
Within six months of the entry into force of the Procurement Delegation Law (not yet published in the Official Journal), the Government must adopt one or more legislative decrees in order to amend provisions related to public contracts for works, services and supplies, also in order to adapt the national legislation to “European law and the principles expressed by the case law of the Constitutional Court and the higher, internal and supranational courts (…), as well as in order to avoid the beginning of infringement proceedings by the European Commission and to reach a resolution of the proceedings opened”.
As expected, even in the Procurement Delegation Law the key word remains “simplification”, which is more essential than ever with regard to:
- the “regulations governing the qualification of contracting authorities, in order to achieve a substantial reduction in their numbers, as well as their unification and reorganization and the introduction of strong incentives for the use of central purchasing bodies and auxiliary contracting authorities to carry out public tenders and the strengthening of the qualification and specialization of staff working in contracting authorities” – see Article 1, paragraph 2, letter b).
- the regulations applicable to public contracts for works, services and supplies below the thresholds of EU relevance, in compliance with the principles of transparency and competitiveness – see Article 1, paragraph 2, letter c);
- to procedures aimed at “making investments in green and digital technologies, as well as in innovation and research, also in order to achieve the sustainable development goals adopted by the United Nations General Assembly on 25 September, 2015 (i.e. Agenda 2030), to increase the degree of eco-sustainability of public investments and economic activities, according to the criteria set out in Regulation (EU) 2020/852 of the European Parliament and of the Council dated 18 June, 2020” – see Article 1, paragraph 2, letter d).
In addition to the above, it should be mentioned the aim of speeding up procedures for drawing up contracts and carrying out works, which may be pursued, inter alia, through: (i) full digitalization and computerization; (ii) overcoming the national register of members of the selection board and strengthening the professional specialization of commissioners within each administration; and (iii) reducing the documentary and economic burdens on economic operators – see Article 1, paragraph 2, letter f).
The acceleration of procedures also concerns the phase of assessment of the tenders submitted by economic operators, whose simplification measures provided for in the Procurement Delegation Law are aimed at
- enhancing, with reference to qualifications, the “criteria for formal and substantial verification of implementation capacities, technical and professional skills, compliance with legality, including the provisions relating to the protection of employment and to the prevention and contrast of gender discrimination, as well as the activities actually carried out, also through the use of databases at a central level that reduce uncertainties about operators qualification in each tender procedure” – see Article 1, paragraph 2, letter i);
- reduce the automatism in the assessment of tenders, also in relation to the evaluation of any possible anomaly of the price proposed, as well as typifying the cases in which contracting authorities may resort, for the purposes of awarding contracts, to the sole criterion of the lowest price or the highest discount – see Article 1, paragraph 2, letter l).
The Government’s interventions will also be aimed at revising and simplifying the planning of public works, in order to make them more responsive to the needs of the community, through rapid and less conflictual procedures to reach agreements between the various territorial levels involved – see Article 1, paragraph 2, letter g).
Precisely in this regard, in line with the aims pursued by the NRRP, is certainly significant the recent Recommendation no. 1 of 17 June, with which the National Commission for Public Debate approved the Guidelines that regulate this arrangement in order to ensure the widest involvement of local authorities and civil society in decision-making processes on major works that have an economic, social and environmental impact on the community.
The Procurement Delegation Law also encourages the use of flexible awarding procedures “such as the competitive dialogue, the innovation partnership and the negotiated procedures with notice (…)” (see Article 1, paragraph 2, letter m), providing that the public-private partnership and project financing procedures must be made “effectively attractive to professional investors” – see Article 1, paragraph 2, letter n).
Moreover, the Procurement Delegation Law has provided for contracting authorities, even with an uncertain wording (“the faculty or the obligation”), to include in calls for tenders, notices or invitations, specific social and environmental clauses, with which may be identified “necessary or rewarding requirements of the offer” aimed, inter alia, at:
- promoting the occupational stability of the staff employed;
- ensuring the application of national and territorial collective labor agreements for the sector, entered into by the most representative associations of employers and workers at national level;
- promoting equal generational and gender opportunities, as provided for in Article 47, Semplificazioni bis (see, newsletter of 09 June 2021).
The legislative decrees that will be adopted, in line with the objectives set out in Article 1, paragraph 2, Procurement Delegation Law, will also have to:
- regulate and modify the system of concessions (prohibiting their extension);
- reinforce sanctioning and rewarding mechanisms aimed at providing incentives for the timely execution of public contracts;
- extend methods of settling disputes that are alternative to judicial remedies.
Last but not least (actually the most interesting novelty, assuming the possibility to talk about novelties), with the reference made by Article 1, paragraph 4, of the Procurement Delegation Law to Article 14, number 2, Royal Decree no. 1054 of 26 June 1924 (unique text on the provision related to the Council of State), the Procurement Delegation Law has in fact asked to the constitutional Body of Administrative Justice to shape the legislative changes, not limiting itself to the usual provision of preventive opinions on the draft of legislative decrees, but rather, where requested by the Government, directly drawing up the same, with the help of magistrates of the Regional Administrative Courts, external experts and representatives of the free forum, as well as the Attorney General’s Office.
This provision will represent a valuable aid to the legislator with a view to improving the quality of regulation, as well as optimizing the matter of public contracts in a consistent and systematic manner with the European legal framework, reducing legal uncertainty (and the related litigation), through the certainty of rules which, it is hoped, will remain as unchanged as possible over time.
PwC TLS Avvocati e Commercialisti
PwC TLS Avvocati e Commercialisti