NEWS, CRITICAL ISSUES AND PROSPECTS OF THE NEW 'PUBLIC PROCUREMENT CODE' (LEGISLATIVE DECREE NO. 36 OF 31 MARCH 2023) EFFECTIVE JULY 1. WE ARE READY?

 

1. Introduction and effective date of the new discipline

 

On 31 March 2023, in the ordinary supplement no. 12 of the Official Gazette no. 77, the text of Legislative Decree 36/2023. It was introduced by the Legislator in order to systematically reorganize the entire discipline of public contracts; moreover, the new legislation brings evident innovative elements to the regulatory complex, among which we can cite, by way of example, the extension of the digitization process to the entire procurement procedure, thus overcoming the instructions on the subject provided by the guidelines prepared by the ANAC: from next year, in fact, the so-called "National ecosystem of digital procurement", with the definitive archiving of the paper tender, giving way to digital which, in this way, will become the pivot of the entire existential cycle of the public contract, guaranteeing transparency, traceability, participation and control of all administrative procedures relating to procurement.

 

The new Procurement Code can then be considered as a significant innovation of the matter compared to the old Code, still in force, which instead tends to highlight the role played by the ANAC and the consequent power of so-called soft law, by means of the guidelines adopted by the independent Authority, which the latter has exercised and continues to exercise. Not only that, the new discipline assumes the same posture with respect to the previous so-called Code. "De Lise", which for its detailed discipline made use of an implementing regulation, unlike the new legislative decree 31 March 2023, n. 36 which, on the contrary, enjoys a definite autonomy with respect to the previous regulatory disciplines, completing itself thanks to the contribution of detail provided by the numerous annexes: the new Code will not be subject to the need to resort to subsequent references to external sources.

 

Starting from 1 April 2023, therefore, references to legislative, regulatory or administrative provisions in force under Legislative Decree 50/2016, or to the public procurement code in force on the date the code comes into force, are understood to refer to the corresponding provisions of the code or, failing that, to the principles inferable from the code itself; even if the art. 229, however, establishes that the aforementioned legislative decree will be fully operational (therefore its provisions will take effect) only starting from 1 July 2023: therefore, starting from 1 July 2023 in place of the ANAC regulations and guidelines adopted in implementation of the old public procurement code (legislative decree no. 50/2016), unless otherwise provided for by the new code, the corresponding provisions of legislative decree no. 36/2023 and its annexes. Furthermore, from the point of view of the effective date, it is necessary to underline that, in order to allow a complete implementation of the new regulatory system and an equally complete knowledge on the part of the operators, some institutes regulated within the new Code will definitively enter into effective only from 1 January 2024.

 

The new code establishes that by new proceedings we mean:

 

Starting from 1 July 2023, the provisions of art. 23 of Legislative Decree no. 50/2016, i.e. the regulation of planning levels for tenders, for works concessions as well as for services, continue to apply to ongoing proceedings. To this end, pending proceedings mean the procedures for which the design assignment has been formalized on the date on which the code becomes effective. In the event that the drafting assignment ne of the technical and economic feasibility project has been formalized before the date on which the code becomes effective, the contracting authority may proceed with the joint assignment of the design and execution of the works on the basis of the technical and economic feasibility project or on the basis of a final drawn up pursuant to art. 23 legislative decree n. 50/2016.

 

For the interventions included among the strategic infrastructures, already included in the approved planning tools and for which the environmental impact assessment procedure has already been started on the date of entry into force of the legislative decree n. 50/2016, the related projects are approved according to the provisions of art. 163 legislative decree n. 163/2006.

 

2. General principles of the new regulatory system

 

Among the most relevant innovations introduced that the new discipline is about to introduce, the wording, in articles 1 to 12, of the so-called "General principles", already provided in articles 29 and 30 of Legislative Decree 50/2016 but which, in the new legislation, are positioned at the beginning of the legislative text, to underline precisely how these must be considered as fundamental principles from which to start for the implementation of any future tender procedure and, moreover, as a benchmark for judging and evaluating the work of public officials. By operating in this way the legislator wanted to grant the Public Administration broad discretion in defining the tenders, a discretion that had been drastically reduced due to the adoption of the ANAC Guidelines, provided for in the previous Code and now repealed.

 

At the art. 1, the administrative Legislator wanted to enunciate the so-called principle of the result, which highlights the pre-eminent interest to be attributed to the assignment of the contract by the granting bodies and the consequent execution of the latter by the contracting stations, placing emphasis on the timeliness of the action and the pursuit of the best quality-price ratio, obviously always acting in full compliance with the principles of legality, transparency and competition and placing the achievement of the objectives set by the European Union as a further object: in conclusion, the introduction of the result principle highlights how legitimacy is no longer a sufficient requirement to consider a tender as compliant with another important requirement, that of efficiency.

 

The art. 2, on the other hand, states the principle of trust referring not only to the Public Administration and its officials, but also with reference to the operators who come to interface with the latter: the action of all these subjects is indeed described as legitimate, transparent and correct. Through the provision of this important principle, then, the Legislator sets himself the ambitious goal of mitigating the phenomenon, increasingly problematic and present in public-private relations, of the so-called defense bureaucracy.

 

The art. 4, entitled "Interpretative and application criterion", provides precisely the interpretative tool of the regulatory body, regulating that the provisions of the code must be interpreted and applied on the basis of the principles established in articles 1 to 3 (the latter enunciates the principle of access market).

Lastly, among the other principles set out in the new procurement code, the conservation of contractual balance is certainly worthy of mention, consolidated in the field of concessions and, more generally, in the context of public-private partnership contracts, but certainly endowed of an unprecedented degree of innovation if used as a general principle, therefore also applicable to the subject of public procurement: it establishes that extraordinary and unforeseeable facts that have occurred which determine an alteration of the contractual balance give the right to renegotiate the contractual conditions in good faith in order to restore the original synallagma.

 

3. Legislative changes introduced by Legislative Decree 31 March 2023, n. 36 and related criticalities

 

One of the most relevant innovations within the new regulatory system can be found in the context of the discipline of so-called mixed contracts, framed within the art. 14 of the Code, specifically in paragraph 18 and following. Both in the Code currently in force and in the one that will soon be applied, it is envisaged that contracts which have as their object two or more types of services are awarded according to the provisions applicable to the type of contract which constitutes their main object, except for the law in force it is foreseen that the main object is determined on the basis of the highest estimated value only when the contract includes services and supplies, never works. In fact, in the presence of works, the current code adopts for the identification of the rules of assignment, a functional, non-quantitative criterion, which consists in going to verify what is the main object - therefore not merely ancillary - in the intentions of the contracting authority. On the other hand, the new code, in order to identify the rules for awarding mixed contracts, does not limit the application of the quantitative criterion to mixed service and supply contracts only, but elevates it to the role of a single general criterion, therefore applicable also to contractual cases which also concern works, as well as services and supplies.

 

The criterion, however, aroused the observations of the European Commission which contested its exclusive use, recalling that for Community law the reference parameter for determining the rules applicable to mixed tenders consists of "the main object of the contract", the identification of which contributes not only to the economic significance of the individual services, but also to the accessory nature or otherwise of the works component with respect to the other services provided for in the contract. The provision was then modified by art. 24, paragraph 2, Law 18 April 2005, n. 62 - Community law 2004. Therefore, a complex criterion was opted for which requires the prior identification of the objectively prevalent service, characterizing the contract, and the subsequent assessment of the relationship in which the works are found with this, even if of a more than 50% of that of the entire contract; to arrive at excluding the applicability of the legislation on public works only when, even if the amount exceeds the indicated limit, the works component is characterized by its mere accessory nature, i.e. it functions as a mere tool for the correct execution of the main service.

 

It is, therefore, precisely in the light of the criticisms raised by the Commission regarding a criterion of juridical qualification of mixed contracts when they include works exclusively based on economic prevalence that the provision of the new Code raises perplexities.

 

An entire part, specifically Part II, is dedicated to the digitization of the contract lifecycle. Therefore, compared to the current Code, essentially focused on the digitization of the procedures for choosing the contractor, the challenge of the new Code is to include the entire life cycle of contracts, divided into planning, design, publication, assignment and execution. A "national digital procurement ecosystem" is envisaged, the cornerstones of which are the national database of public contracts, the virtual file of the economic operator, the digital procurement platforms, the use of automated procedures.

 

As far as planning is concerned, the duration of the program relating to goods and services passes from three years to three years, to implement an action of uniformity with respect to that relating to works. In addition, the thresholds that require inclusion in the programs are also changed: for jobs, those with an estimated amount equal to or greater than 150,000 euros must be included. It is also envisaged that works for an amount equal to or greater than the European significance threshold are included in the triennial list after the approval of the feasibility document of the design alternatives and in the annual list after the approval of the design guideline document. The services must be included in the three-year program if the estimated amount is equal to or greater than 14,000 euros. Interventions concerning strategic infrastructures and those of primary national interest are automatically included in the institutional program agreements and program agreements and the establishment by the Higher Council of Public Works of a special committee specifically dedicated to examining these projects is envisaged.

 

In implementation of the enabling law n. 78/2022, which prescribes a simplification of the procedures relating to the approval phase of projects in the field of public works also through the redefinition of the planning levels for the purpose of reducing them, Article 41 of the Code provides for a reduction of the current three levels (technical and economic feasibility project, definitive and executive project) to two, eliminating the definitive project, even if, on closer inspection, it follows an expansion of the contents of the PFTE.

 

The art. 44 of the new Code, liberalizes integrated procurement. Through the provision of the aforementioned provision, the contracting authorities will be able to assess in a discretionary manner the opportunity regarding the assessment that the contract has as its object the executive design and the execution of works on the basis of an approved technical-economic feasibility project, except for contracts for ordinary maintenance works, this right cannot be exercised.

 

Art. 60 provides the obligatory inclusion of price revision clauses in the initial tender documents was introduced in relation to the occurrence of particular conditions of an objective nature, unforeseeable at the time of the offer. The price revision mechanism is applied in the event of an increase or decrease of more than 5% of the total original amount and operates to the extent of 80% in relation to the portion of the changed amount.

 

In terms of general requirements, the Code has divided the matter into five provisions, Articles from 94 to 98, concerning the causes of automatic exclusion, the causes of non-automatic exclusion, the procedural discipline common to the events from which the exclusion of the economic operator follows, the discipline that concerns groupings of companies, with the prediction of the cases of replacement or expulsion of the member of the grouping and the regulation of professional offences.

 

The novelties on a substantial level are certainly those concerning the extension of the discipline of the so-called "self-cleaning"; the elimination of the figure of subjects who left office in the year preceding the date of publication of the call for tenders; the different classification of the omission of the communication to the contracting authority or its non-truthfulness with regard to the existence of the facts or provisions that may constitute grounds for exclusion, now classified as causes of possible significance for the assessment of unreliability underlying the professional offence.

 

With regard to subcontracting, the main change is represented by the elimination of the foreclosure to the so-called cascade subcontracting; it is now foreseen, in art. 119, paragraph 17 of the new regulation, that the contracting authorities indicate in the tender documents any limits to cascading subcontracting, which must be specific and motivated.

 

The regulation of the special sectors is contained in Book III. In addition to clarifying the option for public companies and private subjects holding special or exclusive rights to provide for a regulation for adapting the functions of the RUP to their own organization, the possibility is introduced of specifying the notion of variant during construction as a function of the specific needs of the market to which they belong and of the characteristics of the sector and to determine the dimensions of the object of the contract and of the lots into which to possibly subdivide it, without the obligation of aggravated reasons and taking into account the needs of the sector in which they operate.

 

In Book IV, as regards the public-private partnership, the new legislation overcomes the current division between concession contracts and public-private partnership contracts. Furthermore, the art. 193, governing the procedure relating to project financing, presents the following innovations:

 

On the point of view of the pathology of the contractual relationship, among the alternative tools for the resolution of disputes, in addition to the amicable agreement, the settlement and arbitration, an increasingly central role is assumed by the Technical Consultative Board (governed by articles 215-219 ), which action is also extended to service and supply contracts. In fact, the new discipline contains a detailed regulation concerning cases that require mandatory opinions and determinations with the value of a contractual award. Furthermore, the possibility of setting up the Technical Consultative Board to resolve any technical or legal problems arising prior to the execution of the contract is also recognised. Also in Title V is found the regulation of pre-litigation opinions which can be requested from the ANAC, to which the supervisory and sanctioning functions are strengthened, but which is contextually prevented from the right to issue Guidelines, through the innovative integration, to the within the new Code, of the implementing discipline.

 

4. Conclusion and future perspectives

 

The date of 1 July 2023, therefore, represents only one of the passages of this long and tortuous legislative process, which accompanied the entry into force of the new Code of public contracts. It is therefore necessary to pay close attention to this date and the crucial junction that accompanies it: this is the day on which the new regulatory system will obtain its full operation, becoming enforceable thanks to the function performed by the attachments which, as stated above, make it unnecessary to issue further implementing decrees.

 

Well, all companies, contracting authorities, economic operators in general will be required to be reactive, prepared and be ready for the appointment, in order not to make mistakes and comply with the entire new discipline. 

 

For these reasons, on next September, “BLB-Studio Legale” will organize a meeting focused on the subject in question, aimed at all those who will find themselves working daily with this new challenge.