Approved on March 29 the legislative decree on the Public Contracts Code, implementing Article 1 of Law No. 78 of June 21, 2022 among favorable and unfavorable opinions.

As part of the implementation of the PNRR, the reform of the procurement code is one of the binding deadlines for receiving funds from Europe.

Let's look below at the main new features and differences from its predecessor (Legislative Decree 50/2016) and the views of some key figures in the procurement world.

Design levels and qualified dissent

Legislative Decree 50/2016 expressly sanctioned 3 levels of design:
1. Technical and economic feasibility project

2. Final design

3. Executive project

Instead, the New Procurement Code establishes 2 levels of design:
1. Technical and economic feasibility Project

2. Executive project

In the New Code, there is no final design; this change stems from the decision to streamline the procedural steps for the completion of public works due to bureaucratic rigidity. Just consider the authorizations required prior to the start of work; authorizations in the preliminary phase, later authorizations on the final project that many times led back to the preliminary phase and additional authorizations also present in the executive project. This absolutely needed revision by dwelling not so much on the authorizations, but rather on the implementation of the public work, in a time and manner that would be faster. Qualified dissent is also introduced, so that administrations will be much more limited in blocking a public work.

The name of the RUP changes

Previously the RUP was the Sole Manager of the Procedure, while he will become the Sole Manager of the project. 

The 'new' RUP is given responsibility for the planning, design, contracting and for the execution phases of each procedure subject to the code. The head of the organizational unit holding the spending power appoints the RUP from among the employees assigned to the same unit in possession of appropriate professional skills in relation to the tasks entrusted to him/her, in accordance with the contractual classification and related duties. 

Contracting stations and awarding entities that are not public administrations or public bodies shall identify, in accordance with their own regulations, one or more persons to be entrusted with the duties of the RUP, limited to compliance with the rules of the code with which they are required to comply. The office of RUP is mandatory and cannot be refused. In case of failure to appoint the RUP in the act of initiation of public intervention, the office shall be held by the same person referred to in the first sentence. The name of the RUP shall be indicated in the call for tenders or, failing that, in the invitation to bid or in the direct awarding measure.

Notwithstanding the uniqueness of the RUP, and if the RUP so requests, contracting stations and awarding entities, each according to its own regulations, shall appoint a process manager for the planning, design and execution phases and a process manager for the awarding phase. The relevant responsibilities shall be apportioned according to the tasks performed in each phase, without prejudice to the supervisory functions, guidance and coordination of the RUP.

Cascading Subcontracting and Integrated Contracting

Further news concerns the presence of cascading subcontracting, through which the subcontractor can subcontract part of the services entrusted to him. This turns out to be a very troubled topic, since the European Commission had already previously initiated an infringement procedure, No. 2018/2273, against Italy for incompatibility of the Code in public contracts with European law. The rationale for this choice of the Italian legislator lay in the fact that this form in public contracts could be a vehicle for easy criminal infiltration, while instead, especially in the supranational sphere, this form was/is viewed positively for its wider participation and access to public contracts by small businesses. In this regard, it should be considered that in the first instance, Italy with Legislative Decree 50/2016 had established the 30% quantitative limit to subcontractable services, a general ban on cascade subcontracting; after the European Commission procedure, the legislature increased the maximum subcontracting threshold to 50%, but maintaining the ban on cascade subcontracting. With the new code, the maximum subcontracting threshold is increased to 60% and cascading subcontracting is reinstated. Previously, integrated contracting was prohibited, now this will allow the design and execution of works to be awarded in one and the same tender.

Sub-threshold liberalization

The new code stipulates:

1. Mandatory direct awarding for contracts under 150 thousand euros (total counter value of 3.3 million euros);
2. Negotiated procedure without competitive bidding but with five invitations for contracts up to one million euros;
3. Negotiated procedure without competitive bidding but with ten invitations for contracts between 1 and 5.38 million euros.

Price revision clauses

The inclusion of price revision clauses is confirmed, but how does it actually work?

The moment there is a change in cost above the 5% threshold, this clause is triggered with the recognition in favor of the company of 80% of the increased cost. Through ISTAT Indices it will be possible to determine the change in costs and prices (consumer and producer prices as well as hourly contractual wage indices).

Priority works and First Italy

Government with the Regions, in order to accelerate planning, qualifies an infrastructure as being of preeminent national or strategic interest and then includes these works in the Economic and Financial Document (MEF); in this way, the main objective will be to reduce the time limits for planning also through the establishment of a special committee dedicated to the examination of these projects, by the Higher Council.

Also included within the Code is a "safeguarding of made in Italy" clause that provides for premium criteria for products originating in Italy or Eu countries in relation to the total supplies to perform the contract; in this way Italian and European supplies will be protected from competition from other countries.

Principle of result and trust

The New Code identifies two fundamental principles: 

1. Result principle

2. Principle of trust

Underlying the result principle, while respecting transparency and competition, is the goal of awarding the contract and executing it in the shortest possible time. The principle of trust, working in parallel with the principle of result, enhances the initiative and autonomy of public officials. In this way unlike the old Code, it overcomes the fear of signature, since officials feared liability and repercussions, further blocking procedures (non-doing was preferred to doing). The New Code stipulates that to determine gross negligence, violation of rules of law and rules of prudence, expertise and diligence must be considered, but not failure to refer to case law guidelines or opinions of the competent authority.

STATEMENTS OF GIUSEPPE BUSIA, PRESIDENT OF ANAC

LThe main shadow pointed out by the Authority is that "under 150 thousand euros you give a free hand, you say do not consult the market, choose the company you want, which means you will take the closest company, the one I know, not the one that performs best." This is the opinion expressed by the president of Anac, Giuseppe Busia, on the text on the Procurement Code approved yesterday in the Cdm. "Under 150,000 euros the cousin or even the one who voted for me is fine, and this is a problem, especially in small towns," he explained to Zapping on Radio Uno.

In a note, Busia specified: "The new Code's push for digitization of procurement is good. Beware, however, of shifting the focus only to 'doing it fast,' which can never lose sight of 'doing it right.' Simplification and speed are important values, but they cannot be at the expense of equally important principles such as transparency, controllability and free competition, which have not found all the attention they need in the new Code, especially at a stage in the country when substantial European resources are flowing in." Busia also stresses the positive aspects of the new Code: "With the all-digital management of procurement, envisaged by the Code and a longstanding commitment of Anac, the extension of digital to the entire contract lifecycle will be ensured, starting from scheduling, to the request for the tender identification code, to the execution and conclusion of the contract, and to the final invoice. This brings to full maturity what Anac has already done with the National Public Contracts Database: all information and activities regarding the contract will have to go through interoperable telematic platforms and flow into the Authority's portal, with direct data acquisition." Doubts remain, however, "due to the reduction of transparency and publicity of the procedures, principles placed to guarantee a better participation of companies, and to protect the rights of all those involved." And again, "Excessively high thresholds-for direct awards and negotiated procedures-make smaller contracts, which are-it should be noted-the numerically most significant ones, less contestable and less controllable. All this with the risk of reducing competition and transparency in public contracts." Among the positive aspects of the Code, Busia instead emphasizes the strengthening of "collaborative supervision, one of the most effective prevention tools that allows Anac to intervene promptly and guarantee legality in awarding procedures, without any loss of time. Public administrations that adhere to it submit tender acts in advance to the Authority, which in a very short time-from five to eight days-provides observations and advice, favoring the deflation of litigation".

Anac has calculated that in 2021 Italian contracting stations promoted 62,812 procedures for the assignment of public works, with a countervalue of 43.4 billion euros, writes Il Sole 24 ore -. Of these, as many as 61,731 procedures (which Anac detects as a perfected request for Cig, Tender Identification Code), equal precisely to 98.27 percent for a value of 18.9 billion, are related to tenders below 5 million. So, below the EU threshold of 5.38 million, which is the amount range within which the new procurement code imposes direct awarding (up to 150 thousand euros) and the negotiated procedure without notice (with 5 or 10 invitations depending on whether the works to be performed are worth less or more than one million)." In addition, the wording of the decree approved by the CdM softens the constraint to proceed without a tender at least for works worth more than one million.

STATEMENTS OF SIMONE GAMBERINI, PRESIDENT OF LEGACOOP

"The new procurement code represents a step forward on the road to simplification, digitization and improvement of the process of awarding public contracts, but it also has critical aspects on issues with respect to which we had made specific proposals.

The positive aspects, however, could be nullified by its entry into force ahead of the time needed to qualify and train contracting stations, with the risk of blocking the public procurement market as already happened with the entry into force of the previous code".

Legacoop President Simone Gamberini said that. "The text known so far does not fully respond to the main proposals for improvement put forward by the cooperative movement, and shared by the parliamentary committees, related to price revision, the economically most advantageous offer and consortium instruments. The main profiles of cooperative and artisan consortia need to be clarified, consistent with the regulations of the past two decades that have always favored the participation of small and medium-sized enterprises in the public procurement market. The successful introduction of mandatory price revision, which makes it possible to safeguard the execution of contracts in the face of soaring inflation, risks being thwarted by unclear guidance on its actual application. Finally, the quality of services must be guaranteed by more decisively limiting the weight of price in the most economically advantageous offer".
 "The path for the qualification of contracting stations, which, if it is completed, can improve the relationship between public administrations and businesses, is commendable. An objective that also finds room in the general principles, which value trust and balance between the parties as the foundations of a new relationship between public entity and business”.

"This approach goes in the direction of a new model of solidarity partnership between public and private that we have been claiming for some time as a sign of attention to the goal of raising the quality of services and ensuring greater protections for workers, without neglecting the essential profiles of competition. From this point of view, the thresholds within which direct contracting or negotiated procedures are envisaged risk undermining the conditions for fair competition in the market." "We hope that through continuous confrontation these critical issues can be addressed by the date of full implementation of the code".

PINK STAMP, WHAT WILL HAPPEN TO IT?!

The New Procurement Code will unfortunately hold a nasty surprise for women and businesses. It appears from the text that there is a risk that the pink stamp will be permanently cancelled; this allowed businesses that certified gender equality, demonstrating that they were working against discrimination, to be rewarded through tax benefits.

The Certification of Gender Equality for Businesses, launched in 2021, was aimed at carrying out a structural revolution in companies; this Certification is among the projects contained in the PNRR, whose projections led to an increase in GDP equal to a quarter of the total increase produced by the PNRR itself and especially because the concept of gender equity, was and is at the heart of the European Union as a "prerequisite" for access to the funds precisely of the PNRR.

ALL THE NEWS