Pursuant to the implementation of the delegation contained in Law No. 78 of 21 June 2022, the new Public Contracts Code (the 'new Code') has been definitively approved by Legislative Decree No. 36, which will replace Legislative Decree No. 50/2016 (the 'old Code') with effect from 1 July 2023.
Below are outlined some of the most noteworthy changes introduced in terms of general principles - digitisation - RUP (Single Project Coordinator) and awards of public contracts below EU threshold.
1. THE NEW TITLE I - GENERAL PRINCIPLES
The new Code defines a number of general principles of public contract award procedures including:
• “Principle of Achievement” according to which Contracting Authorities (hereinafter “CA”) “shall pursue the objective of awarding and executing the contract in a timely manner while ensuring the best possible price/quality ratio, in accordance with the principles of legality, transparency and fair competition” (art. 1, par. 1). The principle of result is the overriding criterion for the exercise of discretionary powers. (Art. 1, para. 4);
• “Principle of Trust” in the legitimate, transparent, and correct activity of the Administration, its officials and the economic operators (art. 2 par. 1). Of particular importance is the new measure introduced, according to which gross negligence cannot be established where the violation or omission of the official originates from the " reference to prevailing case law or opinions of the competent authorities" (art. 2, par. 3);
• “Principle of Market access” which codifies European principles of fair competition, impartiality, non-discrimination, disclosure, transparency and proportionality in the award procedures (art. 3);
• “Principle of Good faith and Principle of legitimate expectations” in the tender procedure the Contracting Authorities and the operators undertake to 'mutually' respect these principles. In particular, in the tender procedure, even before the award of the tender, the economic operator relies on the legitimate exercise of administrative powers and on the compliance of the Administration’s actions with the principle of good faith (art. 5);
• “Principle of Administrative self-organization” according to which Contracting Authorities and awarding bodies may directly assign works, services or supplies to in-house companies, in compliance with the principles of achievement, trust and market access (art. 7);
• “Principle of Contractual autonomy” according to which, in order to pursue their institutional tasks, Public Administrations may conclude any contract, even without consideration, unless expressly prohibited by the Code or by other legal provisions (Art. 8, par 1);
• “Principle of preservation of Contractual balance” according to which, if extraordinary and unforeseeable circumstances arise that are beyond the ordinary scope of the contract and market risk, the disadvantaged party is entitled to negotiate in good faith the contractual terms (art. 9). It is mandatory for the CA including the price revision clauses in tender documents (Art. 60)
2. DIGITISATION OF PUBLIC CONTRACT TENDER PROCEDURES
Contracting Authorities and awarding bodies guarantee the digitisation of the contract life-cycle in compliance with the principles of the Digital Administration Code, ensure the exercise of “digital citizenship rights” and operate in accordance with the principles of technology neutrality, transparency, as well as personal data protection and cyber security (Art. 19)
The new Code establishes a "National digital procurement ecosystem (e-procurement)" (art. 22) by which the tendering activities will take place based on a “National public contracts database” (art. 23) managed by ANAC (Italian Anticorruption Authority) where the “Economic operator’s virtual file” will be stored (art. 24).
Contracting Entities should use 'Digital Procurement Platforms' when conducting procurement procedures and when executing public procurement contracts (Art. 25).
Digital platforms and services allow, inter alia, electronic access to tender documents, submission of the DGUE and tenders in digital format; opening, management and storage of the “Economic operator’s virtual file” in digital mode.
3. THE “RUP”
The new Code sets out in greater detail the tasks assigned to the Single Project Coordinator (the “Responsabile Unico del Progetto”, hereinafter the "RUP") who oversees all the planning, design, awarding and execution phases of public contracts (art. 15).
In particular, the RUP decides - and no longer "proposes"- the "systems for awarding works, services and supplies, the type of contract to be awarded, and the award criterion to be adopted" (All. I.2, art. 6, par. 2, lett. g).
Furthermore, the new Code introduces the figure of the "Phase Officers" (Responsabili di fase), acting under the supervision, direction, and coordination of the RUP and whose responsibilities are distributed according to the tasks performed in each phase of the tender.
In contracts under EU threshold and in tenders for works neither complex nor of special significance, the RUP may also act as Project manager (“Direttore Lavori”) and Project designer (All. I.2, art. 4, par. 2).
4. PROJECT MANAGEMENT
The Project Manager (“Direttore Lavori”) is appointed by the Contracting Authority on a proposal from the RUP.
A significant change for the Public Administrations lies in the fact that they will necessarily appoint the DL among their own employees (without prejudice to the possibility for the Contracting Authority to provide otherwise in the tender notice) or among employees of Central Procurement Bodies or other Public Administrations (art. 15).
The Project Manager function is outsourced only when the Contracting Authority lacks the expertise or is not equipped with the staffing required, or when the contract includes complex works or works requiring specific professional skills.
5. CONTRACTS UNDER EU THRESHOLD
Works, services and supplies contracts under the EU threshold, shall be awarded in compliance with the general principles defined by the new Code (art. 48, par. 1 – see point 1).
In the event the Contracting Authority recognizes the existence of a certain cross-border interest (e.g. contract in a border area between two EU Member States) it will have to follow the ordinary procedures in the contract awarding and not those provided for contract under EU thresholds (art. 48 para 2).
The principle of rotation was substantially confirmed for contracts exceeding 5,000 Euros (art. 49). It is prohibited the awarding of a contract to the previous contractor in the event that two consecutive awarding relate to a contract in the same product sector, the same category of works or the same service sector (unless this is justified by reference to the market structure and the actual lack of alternative solutions).
AWARDING MODALITIES (article 50, paragraph 1)
► WORKS
- direct awarding, even without consulting with different economic operators, for works whose value is lower than 150,000 Euros;
- negotiated procedure without tender notice, after consulting at least five economic operators identified on the basis of market surveys or lists of economic operators, for works with value between 150,000 and 1.000.000 Euros;
- negotiated procedure without a tender notice, after consulting at least ten economic operators, identified on the basis of market surveys or lists of economic operators, for works with a value equal to or greater than 1 million euros and up to the EU thresholds (without prejudice to the possibility for the Contracting Authority to use ordinary procedures, without giving reasons);
► SERVICES AND SUPPLIES
- direct awarding, even without consultations, of services and supplies with value lower than 140,000 euros (including engineering, architectural and design services);
- negotiated procedure without a tender notice, consulting at least five economic operators, for the awarding of services and supplies with a value equal to or greater than 140,000 euros and up to the EU thresholds, (including engineering, architectural and design services).
The Contracting Authority is entitled to proceed with the early performance of the contract after the verification of the fulfilments of the requirements and before the awarding of the contract, without prejudice to the right of the operator to be refunded for the costs incurred in case of non-awarding (art. 50, par. 9).
No bid bond is requested to the economic operator (unless there are specific needs justifying the request in procedures for works exceeding EUR 150,000.00 or services and supplies exceeding EUR 140,000. In such a case, the relevant amount of the bid bond cannot exceed 1% of the tender amount).
The stand-still period does not apply (Art. 55, para. 2)
