Prepared by Guido Ajello, Arianna Mariani and Rocco Tana
After about a year since its approval in the Council of Ministers, the Senate of the Italian Republic finally approved the Law No. 78 of June 21, 2022, entitled “Delega al Governo in materia di contratti pubblici” (“Delegation Law”), published in the Official Journal No. 146 of June 24, 2022, which includes 31 principles and criteria to be respected by the Government in the adoption – within six months – of one or more legislative decrees aimed at rationalizing, reorganizing and simplifying the current Legislative Decree no. 50 of 18 April 2016 (“Public Procurement Code”).
The review of the Public Procurement Code, aimed at simplifying the provisions concerning the public contracts and concessions for the efficient implementation of infrastructure and the relaunch of construction sector, is one of the commitments undertaken by the Government to implement the National Recovery and Resilience Plan (“NRRP” or “Plan”), specifically noted among the so-called “riforme abilitanti”.
At this regard, the Plan provides that the reform of Public Procurement Code shall be realized as an integration of the three EU directives (2014/23, 24 and 25), particularly in those parts that are not self-executing, by ordering them into a discipline newer and leaner than the current one, which would reduce as much as possible the rules that exceed those required by European regulations.
As known, the NRRP traced the process of revision and simplification of the provisions related to public contracts, launched firstly with the entry into force of Decree-Law No. 77 of May 31, 2021, then converted by Law No. 108 of July 29, 2021 (so-called “Decreto Semplificazioni – bis”, subject of the previous newsletter of June 09, 2021 and June 14, 2021), thereafter with the approval of draft delegation law (subject of the previous newsletter of July 06, 2021) and, lastly, with the approval of the Delegation Law, which identified the 31 principles and criteria to be respected by the Government in issuing the new rules on public contracts, including the followings:
- achievement of objectives of strict accordance with the European directives: as anticipated above, the reform is aimed at simplify the complexity of the current regulatory framework in the field of public contracts and, to this end, it is specifically provided the introduction and/or maintenance of a level of regulation corresponding to the minimum required by the European directives (i.e. prohibition of gold plating), without prejudice to the mandatory measures aimed at protecting labor, safety, fighting irregular labor, legality and transparency (see Article 1, paragraph 2 letter a),Delegation Law);
- qualification and decrease of contracting authorities: new provisions shall contain the redefinition and strengthening of regulations related to the qualification of contracting authorities, in order to reduce their quantity and increase their competences (see Article 1, paragraph 2 letter c), Delegation Law);
- support to micro and small-sized companies: in order to encourage the participation by micro and small-sized companies in public tender procedures, new provisions shall contain the definition of bonus criteria for business aggregation, the possibility of splitting contracts into lots in accordance with qualitative or quantitative criteria, with the obligation to justify the decision not to proceed with such division, as well as the prohibition of artificial incorporation of lots (see Article 1, paragraph 2 letter d), Delegation Law);
- minimum environmental and sustainability criteria: new rules contained in Public Procurement Code will have to ensure and increase the degree of eco-sustainability of public investments and compliance with energy and environmental responsibility criteria in the awarding of the relevant contracts, in particular through the definition of minimum environmental criteria to be complied with mandatorily. These latter criteria would be different depending on the nature and the amounts of contracts (see Article 1, paragraph 2 letter f), Delegation Law);
- revision of prices: new regulations should oblige contracting authorities to include a mandatory price revision mechanism in the calls for tenders, notices and invitations. Such mechanism should be applied in case of objective circumstances which were not predictable at the time of the submission of the offer, including price fluctuations resulting from the renewal of national collective labor agreements (see Article 1, paragraph 2 g),Delegation Law);
- reduction and certainty of time related to tendering procedures and stipulation of contracts: the achievement of this objective can be realized through the adoption of standard contracts prepared by Autorità nazionale anticorruzione (ANAC), as well as through the digitization and computerization of procedures, the implementation of the national public contracts Database and the virtual economic operator dossier and also the overcoming of the national Register of the members of the selection board (see Article 1, paragraph 2 letter m),Delegation Law);
- revision and simplification of the operators’ general qualification system: new rules should promote, inter alia, criteria for formal and substantial verification of implementation capacity, technical and professional skills, adequacy of technical equipment and staffing (see Article 1, paragraph 2 letter s), Delegation Law);
- identification of the cases where contracting authorities, during tender evaluations, may use automaticity: new rules should indicate the cases where contracting authorities, for the award of public procurement contracts, will be able to use the lowest price criterion (see Article 1, paragraph 2 letter t),Delegation Law);
- no possible extension of concession contracts: the prohibition should be provided for, without prejudice to the principles on in-house awards and rationalization of the regulations concerning control of concessionaires’ investments and on the status of the works carried out (see Article 1, paragraph 2 letter ff),Delegation Law).
The decrees adopted by the Government will expressly repeal all the provisions subject to revision and, in any case, those that are incompatible with the new rules and shall also contain an appropriate coordination for the provisions not repealed or modified.
In addition, Delegation Law provides that the Government shall obtain a prior opinion of the Council of State, the Unified Conference, and the competent parliamentary committees on the draft legislative decrees. Moreover, the Government shall have the possibility to benefit from the participation of the Council of State during the drafting phase. To this end, pursuant to Article 1, paragraph 4, Delegation Law, the Administrative Judge of Appeals may take advantage of the judges belonging to Regional Administrative Courts, third-party experts and State Attorney General’s Office.
The abovementioned possibility for the Government to be supported by several experts in the drafting of the new rules should facilitate the implementation of the reform, optimizing the public contracts field. The goal is to obtain a new regulation on public contracts free of the several critical aspects and complexities, which have characterized the first six years of application of the Public Procurement Code, and also capable of achieving the essential objectives to recover and relaunch the sectors affected by the present historical moment, as well as defining a new regulatory framework consistent with the European provisions.
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PwC TLS Avvocati e Commercialisti