Procurement code: what are the new rules for implementing the NRP?

On 23 May, the Chamber of Deputies began examining the draft delegated law on public contracts (A.C. 3514): the text approved in committee corrects the one from the Senate, which in turn was an amendment to the government's original July 2021 wording. An important step towards achieving one of the fundamental objectives set by the NRP.

Procurement code, what changes

But in order to be able to use the new framework of rules, it will be necessary to wait at least one more year, necessary to write and approve the implementation part, which the government will be able to draw up with the help of the administrative judiciary. In the meantime, it will be necessary to try to understand what the differences are between the new and the old code (Contracts Code as per legislative decree no. 50 of 2016) and in what way the latter will be able to achieve the breakthrough that many have been expecting for some time and on which the future of the country depends, as well as that of the entire EU context of which Italy is an indispensable part, a context that has not be put by chance considerable resources financed on the table, for the first time, by the common debt.

New Procurement Code, what it says

The digitisation interventions

The provisions on digitisation and computerisation interventions lead to the full implementation of the National Public Contracts Database -returned to Anac by the 2021 simplification decree- and of the virtual file of the economic operator -also managed by the Authority pursuant to the same decree-; this is only to reduce the documentary and economic burdens on those who participate in competitive procedures and the digitisation of the entire implementation procedure to obtain benefits in terms of optimisation of execution times and lifetime costs of the interventions.
No little perplexity is aroused by the absence of any reference, in the text that is now on its way to final discussion, to the use of electronic and informative modelling methods and tools for construction and infrastructures (i.e. BIM), a reference that, on the other hand, appeared in the text of the 2016 proxy. This would appear to be a real step backwards, in respect of which the hope is that the provisions enacted in the meantime on this point will nevertheless be maintained.

Energy and the environment

Turning to the subject of energy and the environment, we highlight the criterion that calls for the simplification of procedures intended for the implementation of investments in green and digital technologies, as well as in innovation and research; this is also with a view to achieving the objectives of the 2030 Agenda for Sustainable Development, thereby increasing the degree of eco-sustainability of public investments and economic activities according to the criteria of Regulation (EU) 2020/852 of June 2020.
In the same context, the provision of measures to ensure compliance with the criteria of energy and environmental responsibility in the awarding of public contracts and concessions is relevant, in particular with the definition of minimum environmental criteria (so-called CAM), to be economically valued in the awarding procedures, and the introduction of reporting systems for energy-environmental objectives.

Overcoming disparities

On the subject of overcoming disparities, the delegation of power is limited to providing for a special criterion aimed at promoting mechanisms and instruments for the realisation of equal generational, gender and work inclusion opportunities for persons with disabilities. In this regard, the choice of declining these principles in terms of rewarding access to the market and/or in the evaluation of bids submitted in tenders is significant. Also in this case, moreover, the observation made earlier on the subject of the digitalisation of procedures applies, in the sense that, without prejudice to the scope of the provision, the hope is that, during implementation, the provisions issued in the meantime by the legislator on this point will be maintained.

How the price revision regime works

Among the new and more topical issues is the introduction of an ad hoc delegation criterion aimed at making it mandatory for all public contracts, a contractual provision of a price revision regime mandatory by law to be mentioned in terms of transparency in tender notices, notices and invitations, which would intervene upon the occurrence of particular conditions that could not be foreseen by the economic operator at the time of the offer, including salary increases.

The importance of training

The qualification of contracting authorities, to be achieved also by encouraging the use of central purchasing bodies and auxiliary contracting authorities, is another point confirmed with respect to 2016, one of the fundamental pillars on which the current code was based, and still is, even if not implemented. New, from this perspective, and in line with the most recent options, is the criterion that aims to implement this objective by enhancing the qualifications and specialisations of public employees through specific training courses to which express reference is made.

Further delegation criteria

Further significant delegation criteria, which with the contribution of the work in committee rise from the 29 in the Senate text to 31, are:

• on the subject of employment stability, the strengthening of the so-called social clauses, in the sense that calls for tenders, notices and invitations relating to all labour-intensive service contracts will have to contain specific provisions to this effect;

• with regard to professional activities, the prohibition of free services, except in exceptional cases with adequate justification, and the obligation to indicate in the tender documents relating to design and execution contracts, the modalities of direct payment to the designer of the relevant fees or of the portion of the fee corresponding to the design costs indicated by the companies in their bids;

• on the subject of operational simplifications, to which Decrees 76/2020 and 77/2021 have so far responded, the prohibition, except in justified cases, of the use of the drawing of lots, or other methods of randomly drawing names, for the selection of operators to be invited to negotiated procedures in the case of contracts below the community thresholds, the typification of the cases in which only the criterion of price or cost may be used for the award of tenders with the possibility of excluding, in non-cross-border contracts, anomalous bids on the basis of mathematical mechanisms and methods, and, on the subject of lots, the possibility of subdividing the contracts to be awarded on the basis of qualitative or quantitative criteria, something already provided for by the 2016 delegation of powers, but in this case without any reference to the obligation to justify choices in a different sense;

• with regard to guarantees, the obligation to take out insurance policies to cover professional risks, with charges to be loaded by the administrations in the event of design assignments being entrusted to personnel within the administrations themselves, the revision of the entire system for economic operators to participate in tenders and the execution of contracts, with homogeneous discipline between ordinary and special sectors, the possibility of replacing execution guarantees with withholdings in proportion to the amount of the contract at the time of payment of each state of progress of works;

• in the area of labour protection, the obligation to separate, in any case, labour and safety costs from the amounts subject to rebate in the tender, and the obligation, in line with the changed discipline of subcontracting in the EU sense, to provide in the social clauses that subcontractors' workers are always guaranteed the same economic and regulatory conditions applied to the contractor's employees;

• with regard to the execution of contracts, redefine the discipline of variants during construction, within the limits of European law, in relation to the possibility of modifying contracts during execution, and identify sanctioning and bonus mechanisms to incentivise the timely execution of contracts, as well as mechanisms to strengthen dispute resolution methods that are alternative to the judicial remedy.

Procurement Code, the lines of development

The current rules are, therefore, destined to govern the implementation of all the interventions to be entrusted in the next 12 months and many of them, on the basis of the principle that the new code can only concern and regulate the entrusting of contracts in the future, will remain in force for many years to come. With this in mind, it is reasonable to think that solutions identified on a temporary basis with the objective of simplification, even in the form of a derogation from the ordinary regime, may find themselves stabilised in the new code. The options already defined today, especially if they should produce appreciable results, could, in fact, find themselves included in the new text of which, therefore, it is already possible today to glimpse the relative lines of development.