The main source of law for public procurement in Italy is Legislative Decree No 50 of 18 April 2016 (the “Public Contracts Code” or PCC). The PCC transposed the EU Directives 2014/23/EU, 2014/24/EU and 2014/25/EU, and provides the legal framework for the awarding of public contracts and concessions concluded by contracting authorities and other awarding entities. The PCC has been subject to several amendments in order to implement European legislative acts, such as:
In the past year, the following key developments are worth mentioning:
In addition, the Code expressly mentions some implementing acts issued by various authorities, including:
A draft new version of the Public Contracts Code (the “New PCC”) was submitted by the Consiglio di Stato to the government on 7 December 2022, and on 16 December it was preliminarily approved and sent to the Parliament for subsequent discussion. On 21 February 2023, the competent commissions of both chambers approved the text and jointly proposed numerous suggestions for the government to consider before approval of the final text. Lastly, on 28 March 2023, the Council of Ministers approved the final text, which currently (31 March 2023) still needs to be published in the Official Journal. The entry in force of the text is scheduled to take place on 1 April 2023, whereas the efficacy of its norms is due on 1 July 2023. Still, several norms of the previous text will remain in force until 31 December 2023.
According to Legislative Decree No 50/2016, there are two types of entities subject to the public procurement regulation: (i) entities operating as awarding authorities or contracting authorities, and (ii) subjects that operate as economic operators.
With reference to entities under (i), Article 3, paragraph 1 of Legislative Decree No 50/2016 provides for the application of the PCC to:
Concerning economic operators, Article 3(1)(p) of PCC states that a bid may be submitted by “a natural or legal person, a public body, a grouping of such persons or bodies, including any temporary association of companies, a body without legal personality, including the European Economic Interest Grouping (EEIG) as described by Legislative Decree No 240 of 23 July 1991, which offers on the market the execution of works, the supply of products or the provision of services”.
Specifically, Article 45 includes:
(a) individual entrepreneurs, including artisans, and companies, including co-operatives;
(b) consortia of production and work co-operatives;
(c) stable consortia, including those constituted as consortia of individual entrepreneurs, including artisans, of commercial companies and production and work co-operatives;
(d) temporary groups of competitors formed of the parties referred to in a), b) and c) above;
(e) ordinary consortia of competitors formed by the entities referred to in a), b) and c) above, including in the form of companies;
(f) aggregations between companies that are members of network contracts; and
(g) entities that have entered into a European Economic Interest Grouping (EEIG) contract.
Pursuant to Article 3, paragraph 1, letter dd) of Legislative Decree 50/2016, procurement law applies to:
Moreover, Article 35 of the PCC incorporated the following EU thresholds:
In regard to special sectors, the EU minimum value thresholds are:
However, contracting authorities may proceed with the award of contracts for works, services and supplies below the aforementioned minimum value thresholds, by following the procedure set out in Article 36 of PCC.
Article 45 of the PCC provides that economic operators established in other member states of the EU, established in accordance with the legislation in force in their respective countries, are also admitted to public contract award procedures.
The Administrative Regional Court (TAR) of Piedmont outlined the consequences of Brexit concerning the admission of British economic operators to the procedures for the award of public contracts and concessions with a value below the EU thresholds (TAR of Piedmont, Section III, 3 December 2021, No 1110). The Court stated that the access of such companies to the procurement market excluded from the framework of EU law is not prohibited but only “not guaranteed” and that, therefore, it is necessary to verify on a case-by-case basis whether the contracting authority has exercised this option.
The main obligations under the public procurement regulation arise from the fundamental principles of the EU Treaties and EU directives: the principles of freedom of movement of goods, freedom of establishment and freedom to provide services, as well as the principles deriving therefrom, such as equal treatment, non-discrimination, mutual recognition, proportionality, transparency, environmental protection and energy efficiency.
These principles are mainly laid down in Article 30 of the PCC, according to which “the award and execution of works, services and supplies contracts and concessions within the meaning of this Code shall ensure the quality of the performances and shall be carried out with respect to the principles of cost-effectiveness, efficacy, timeliness and correctness. In awarding contracts and concessions, the contracting authorities shall also respect the principles of competition, non-discrimination, transparency, proportionality, as well as publicity, according to the modalities indicated in this Code. The principle of cost-effectiveness may be derogated, within the limits in which it is expressly allowed for in current legislation and in this Code, by criteria, provided in the call for competition, inspired to social exigencies, as well as to the safeguard of health, environment, cultural heritage and the promotion of sustainable development, also under an energy standpoint”.
To this extent, it is worth noting that, according to the New PCC, also the principles of “trust”, “market access” and “achievement of a result” (please see Articles 1, 2, and 3) shall be considered by the entities operating as awarding authorities. Moreover, according to the national legislation, contracting authorities may not restrict competition in any way in order to favour or disadvantage certain economic operators and, therefore, the criteria for participation in contracts must be such that they do not exclude micro, small and medium-sized enterprises. On the other hand, to pursue the public interest, only candidates satisfying the moral, financial and technical requirements that provide adequate guarantees of proper performance should participate in the tender procedures.
Public contract regulations set forth two different systems of publicity. The first entails the duties of legal publicity (MIT Decree 2 December 2016 and Articles 70, 71, 78 and 98 of the Public Contracts Code). The second relates to the concept of transparency, as an instrument to allow citizens to supervise administrative activities and the proper use of public resources, also to prevent corruption (Article 29 PCC, Article 5 Legislative Decree 33/2013, so-called civic access).
The PCC and the MIT Decree 2 December 2016, having regard to (i) the value of the contract and/or the concession (ie, whether it is below or above the thresholds set out in Article 35 of the PCC) and (ii) the type of contract (ie, whether it is a supply, services or works contract), mandate for the prior advertisement of notices on:
The following information is included in the notices:
The entities operating as awarding authorities may conduct preliminary market consultations for all types of contracts, regardless of their value (see Articles 66 and 67 of the PCC and ANAC Guidelines No 14 of 6 March 2019), provided that they are carried out before launching a tender procedure, as a support aid for:
To this extent, awarding authorities may acquire advice, information or technical documentation from experts, market participants and independent authorities. Such contribution is provided free of charge, without any right to reimbursement of fees or expenses.
Consultations are initiated by means of a “consultation notice”, which shall indicate:
Preliminary market consultations are particularly relevant when the assignment is of a “novel” nature (ie, innovative or unusual).
The procedure must be conducted in a way to guarantee the protection of fair participation, the ”par condicio” (equal treatment) of the economic operator and transparency. Therefore:
Public competitive procedures are divided into general procedures and negotiated procedures.
Open procedure (Article 60 PCC)
This is called by the publication of: (i) a tender notice, together with the tender regulation, (ii) instructions to tenderers, and (iii) a performance specifications document (so-called lex specialis), followed by the submission of tender (the administrative documentation, the technical and economic bid of each participant). Upon checking the eligibility requirements of the candidates, the awarding authority proceeds to complete the comparative assessment in order to draw up a ranking list and then arrange for the award.
Restricted procedure (Article 61 PCC)
This is called by the publication of a tender notice, but the economic operators are invited to provide a request for tender participation; only after the assessment of the admission requirements provided by the bidders, the awarding authority formally invites the candidates to submit a bid offer. Contracting authorities may limit the number of suitable candidates to be invited to participate in the procedure, whether the relevant criteria are indicated in the tender notice.
These procedures are marked by a direct discussion between public administrations and private operators.
Competitive procedure with negotiation (Article 62 PCC)
Following the publication of the tender notice, the operators first send a request for tender participation and, subsequently, if invited, an initial bid, which will be negotiated with the public administration. At the end of the negotiation, during which fairness and equal treatment shall be ensured with the prohibition, inter alia, of divulging information that could benefit one of the bidders, the contracting authority gives the private operators a time limit to submit their final and unalterable bids.
Negotiated procedure without prior publication of the tender notice (Article 63 PCC)
In the cases referred to in Article 63 of the PCC, public authorities may invite a minimum of five economic operators, identified on the basis of technical and economic information available on the market, to submit a bid (without prior publication of the tender notice). The contracting authority verifies the requirements of the economic operators and then carries out a comparative evaluation of the bids submitted in order to award in favour of the best one.
Competitive dialogue procedure (Article 64 PCC)
Unlike the competitive procedure with negotiation, in this procedure the awarding authority has only to specify the need that it wants to satisfy. Therefore, a broader comparison is established which must lead to the identification of the optimal tailor-made solutions to be submitted to the administration and, subsequently, to the participants in order to request them to submit their final bids. The competitive dialogue procedure is used for particularly complex and/or innovative procurements. The awarding authorities can provide for reward mechanisms and payments in favour of the competitors who are not chosen as the winner of the contract award, in consideration of the remarkable effort required by this procedure.
Innovation partnership (Article 65 PCC)
This specific procedure allows the contracting authority to identify a solution that is still unavailable on the market: to this extent, in the tender notice it is sufficient to formulate the correct admission requirements of the competitors, without specifying the subject matter. Later, the contracting authority can choose whether to activate the partnership with one or more operators. This selection is essentially based on the evaluation of the potential supplier capabilities in the research and development field. Following the negotiation phase, the bid(s) shall be evaluated.
The PCC identifies several criteria that guide the decision of public authorities as to the type of procedure to be chosen for the award of a public contract, the most important of which is the value of the contract. Public contracts whose amount is below the EU threshold are awarded through simplified negotiated procedures governed by Article 36 of the PCC.
The general (open and restricted) procedures are the standard ways of selecting the economic operator. However, if the contracting authority selects the restricted procedure, a specific motivation is deemed as necessary.
On the other hand, the negotiated procedures may only be conducted if the prerequisites identified by the CCP are met and, with specific reference to the competitive procedure with negotiation and the competitive dialogue, the contracting authority shall provide adequate justification in relation to (i) the request for technical requirements and/or (ii) following an unsuccessful attempt in an open or restricted procedure.
With respect to the negotiated procedure without prior publication of the tender notice, contracting authorities may choose such procedure only if the specific conditions set out in Article 63 of the CCP are met, such as (i) the failure of the attempt to call general procedures; (ii) the existence of a single operator on the open market (eg, in case of a unique work of art); and (iii) it is strictly necessary where, for reasons of extreme urgency, it is not possible to comply with the time limit for open or restricted procedures.
Public authorities select the innovation partnership if there is a need to develop innovative products, services or works, which are not easily available on the open market.
The PCC does not impose specific time limits for the publication of procurement documents. Nevertheless, with respect to economic operators, time limits for the submission of applications and bids are (i) essential; (ii) binding; and (iii) shall be expressly stated in the lex specialis. Failure to meet these deadlines will result in the inadmissibility of the proposed bid.
Public administrations may extend these time limits (Article 79 of the CPP):
The PCC also regulates the event of malfunction of the digital e-procurement platform which affects the correct bid submission, providing, if necessary, for the suspension of the time limits for submitting the bid, until the restoration of the normal operation of the digital e-procurement platform (paragraph 5 bis, Article 79 of the PCC). In case of suspension and/or extension, the public authorities are obliged to:
When identifying time limits for the receipt of applications and bids, contracting authorities take into account the subject matter of the public contract (ie, the level of complexity of the work, service or supply to be carried out by the economic operator) and the time required to prepare tenders (ie, the level of complexity of the related technical and economic features).
Public administration has to comply with the ordinary minimum time limits for the submission of the bids in open (“procedure aperte”) and restricted procedures (“procedure ristrette”) provided by Articles 60 and 61 of the PCC, namely:
In both cases, the contracting authority, for reasons of urgency duly motivated, may reduce the above-mentioned time limits. For open procedures, the minimum time limit to submit a bid may be reduced to 15 days and, for restricted procedures, it may be reduced to ten days. In such exceptional cases, the following two conditions must be satisfied:
In order to participate in a public tender procedure, economic operators must meet certain requirements. According to Article 94 of PCC, such requirements are divided into:
General or Subjective Requirements
To consider in more detail, in the context of the moral requirements, Article 80 of the PCC distinguishes between:
Special or Objective Requirements
Articles 83 and 84 of the CCP set the minimum bar of technical-professional and economic-financial requirements for the bidder participating in a public tender procedure: the meaning is to ensure that contracting authorities choose an economic operator whose capabilities, qualifications and experience are suitable to secure the fulfilment of the public contracts. It is worth noting that paragraph 8 of Article 83 of the PCC provides that public authorities may not introduce in tender documents, under penalty of nullity, additional grounds of exclusion other than those expressly established by the PCC.
According to Article 91 of the PCC, in relation to restricted procedures, competitive procedures with negotiation (“procedure competitive con negoziazione”), competitive dialogue procedures (“dialoghi competitivi”) and innovation partnership procedures (“partenariato per l’innovazione”), the contracting authority may limit the number of candidates who meet the selection criteria and who may be invited to submit a bid, negotiate or participate in the dialogue, if the difficulty or complexity of the works, supply or services requires it. However, in order to ensure effective competition between the economic operators:
Pursuant to Article 95 of the PCC, the contracting authority could evaluate a bid/tender according to two different criteria: (i) the most economically advantageous tender (MEAT) and (ii) the lowest price criterion. In addition, for each criterion, the public administration could also provide other sub-criteria or sub-scores. MEAT is the most widely used criterion in the tender procedures for selecting the winner of the contract award procedure, which is based on the best price/quality evaluated through objective requirements such as qualitative, environmental and social aspects, related to the subject matter of the contract as set out in the procurement documents.
Tenders awarded only by the MEAT criterion are:
Conversely, with the lowest price criterion the contracting authority compares bids based on the greater price reduction from the auction base, exclusively in the context of services and supplies with standardised characteristics or whose conditions are defined by the market, with the exception of labour-intensive services.
Disclosure of Bid Evaluation Methodologies
Awarding authorities are required to determine both contract tender evaluation methodology (Article 95 PCC: ie, MEAT or lowest price) and the selection of the bid criteria (ANAC Guidelines No 2 on the most economically advantageous bid, approved by Resolution No 1005 of 21 September 2016, updated to Legislative Decree No 56 of 19 April 2017 by Council Resolution No 424 of 2 May 2018).
Article 95, paragraph 13 of PCC states that contracting authorities shall indicate the adoption of policies aimed at achieving gender equality corroborated by a gender-equality certification.
Please refer to 2.9 Evaluation Criteria for bid evaluation criteria.
Selection of Bidders
The regulation of the call of the tender, in the event in which the tender evaluation is the MEAT, must contain the criteria used by the awarding authority to evaluate the bids (so-called selection of the bidder’s criteria).
Specifically, it is possible to distinguish between (i) constrained, so-called on-off criteria, which award a certain predetermined and fixed score in case of a peculiar characteristic of the performance; and (ii) discretionary, namely the Selection Committee makes a comparative evaluation of the bids – in which case the tender regulations will set a (not excessively wide) score range, within which the Selection Committee will assign the score to each of the candidates, having regard to the “justification criteria” that make up the score range itself.
For each selection of bidding criteria, the tender regulations could provide for the following sub-criteria or sub-weights or sub-scores. An example of the bidder’s criterion selection is the life-cycle costing, which calculates all costs incurred by the authority throughout the life cycle of the product/service.
According to Article 76(5)(b) of PCC contracting authorities must immediately notify the excluded bidders and other candidates of the exclusion decision, and in any case no later than five days from the date of exclusion. Likewise, pursuant to paragraph 2, letter a-bis) of the same article, if a written request is received from the bidder and the candidate concerned, the contracting authority must inform each excluded candidate immediately (and in any case within 15 days of the request) about the reasons that led to the rejection of the application.
Pursuant to Article 76, paragraph 5, of Legislative Decree 50/2016, contracting authorities must immediately – and in any case within five days – notify the award decision to:
PCC provides for two different types of “standstill period”: the “substantial” standstill and the “procedural” standstill.
Article 32, paragraph 9 of PCC provides that “the contract cannot, in any case, be stipulated before thirty-five days since the dispatch of the last of the notifications of the contract award decision”. The regulation refers to the substantial standstill: here the term of 35 days has been co-ordinated with the procedural term (30 days) for challenging the contract award decision, and so to prevent the contract from being entered into during the pending judgment.
This mechanism includes the procedural standstill, which provides for an automatic suspensive effect of 20 days from the appeal against the award with a concomitant precautionary application, provided that within this period at least (i) the first instance precautionary measure is issued or (ii) in case of a decision on the merits at the precautionary hearing, the publication of the operative part of the first instance judgment takes place or the measure is pronounced, if subsequent. The suspensive effect ceases when, during the examination of the precautionary application, the judge declares himself incompetent or fixes the date for the discussion of the merits without granting precautionary measures or postpones the examination of the precautionary application to the trial on the merits, with the consent of the parties, to be understood as an implicit waiver of the immediate examination of the precautionary application.
As a general rule, the awarding authority has the power to review its decisions. This power of administrative self-protection is justified by the need for the public administration to conduct a thorough investigation, to allow for inspections and functional reviews aimed at making the final decision to maintain or remove the act from the system.
In the context of tendering procedures, this power can affect the final contract award decision (so-called external self-protection, since it affects an act that is prodromal and temporally previous to the contract itself) and is most frequently expressed in the institutes of revocation (revoca – regulated by Article 21-quinques of Law No 241/1990) and self-annulment (annullamento d’ufficio, ruled by Article 21-nonies of Law No 241/1990).
On the other hand, internal self-protection relates to all the powers of unilateral intervention of the public administration in the contract, which can also lead to the termination of the contract itself: for example, revocation (regulated by Article 176 of PCC, with reference to concessions – on this point, see Plenary Assembly No 14/2014, according to which once the conclusion of the contract for the award of the public works contract has taken place, the Administration can no longer exercise the power of revocation, having to operate with the exercise of the right of withdrawal – a principle extended also for service and supply contracts, see Council of State, III Sec, March 28, 2022, No 2274) and termination for convenience (recesso unilaterale, regulated by Article 109 of Legislative Decree No 50/2016).
Pursuant to Article 120(5) of the Code of Administrative Procedure (Legislative Decree No 104/2010), these measures may be challenged before the Administrative Court within 30 days from knowledge of the act.
Breach of Procurement Regulations
In the event that the public administration adopts an act in breach of public procurement regulations, the aggrieved economic operator may (i) file a petition for administrative self-annulment against the contracting authority that adopted the administrative act, and/or (ii) challenge the act deemed unlawful by filing a judicial appeal with the judicial authority.
Application for Administrative Self-Protection
The aggrieved economic operator is entitled to submit a reasoned request to the administration to reconsider the choices and assessments made in the tender. In such a case, the contracting station will be called upon to evaluate the application and, in light of the self-assessment carried out, will decide whether to confirm the act/deliberation adopted or, alternatively, to annul it in self-defence (that is, to cancel it from the “legal knowledge”).
The economic operator may appeal to the competent TAR, alleging a violation of procurement regulations. The proceeding must be initiated within 30 days of knowing that grounds for starting the proceeding had arisen. The disputing party also has the right to file for precautionary measures in order to protect its rights and interests.
An economic operator assuming a violation of public tender regulations may file a petition for review and, at the same time, apply to the court for interim precautionary measures, in order to remedy the alleged violation or prevent further damage to the interest of the entitled party. Such measures may consist of the suspension of the challenged measure or, alternatively, the setting of a hearing on the merits of the case.
The application is aimed at imposing interim measures that could be either (i) “monocratic”, issued – without hearing attorneys – until the collegial hearing discussing the interim measures, or (ii) “collegial”. Monocratic interim measures are issued by the TAR President with a presidential decree (which may be adopted even a few hours after the application is filed) “in case of extreme gravity and urgency” – such as not to allow a delay until the date the council next meets in chambers. Collegial interim measures postulate the hearing of the defendant, and the discussion takes place orally. The TAR for interim relief, if it considers the grounds favourable, fixes with a collegial order the date of the hearing on the merits, usually a few weeks after the filing of the application, authorising the production of written statements.
Requirements for Taking Precautionary Measures
The conditions for the issuance of interim measures by the court are:
These requirements are rigorously assessed in the case of monocratic measures, given the absence of any discussion and the extremely short duration of the phase.
The right to challenge the public administration’s decisions stems from the Code of Administrative Procedure, which states that the review procedures can be activated by any concerned entity having concrete and current interest. Specifically, within public procedure matters, it may result in:
If the entity is ranked other than second, it is required to justify not only the unlawful scoring of the successful bidder but also with reference to the evaluation of the bids of the competitor who preceded them in the ranking.
According to Article 120 paragraph 1 of Legislative Decree No 104/2010, “the acts of awarding procedures relating to public works, services or supplies” are subject to the public procurements process, that is a judgment carried out before the Administrative Court and that concerns the overall activity of the public administration aimed at the conclusion of contracts.
In order to challenge the above-mentioned public procedure acts, the appeal must be brought within the term of 30 days:
The administrative legal enforcement of public contracts is quicker than civil and criminal proceedings, as Legislative Decree No 104/2010 has provided very short deadlines for appeals compared to the ordinary procedure (ie, the deadline for appealing award decisions is 30 days from their communication).
If the economic operator requests the application of interim and precautionary measures (“misure cautelari”), the court must schedule a hearing after the tenth day from the notification and five days from the filing of the application. (It is estimated that the review of interim measures has an average duration of 30 days.)
In such proceedings, judges not only rule on interlocutory orders but, if they find that there is a manifest basis for the claim, they are entitled to rule on the entire proceeding in a simplified judgment. The grounds for the judgment may consist of a brief reference to the point of fact or law deemed decisive or, where appropriate, to a conforming precedent.
According to the “Report on the Administration of Justice in the Year 2022” published on the website of the Ministry of Justice, the average duration for the settlement of a new public procurement case is 159 days, while an appeal before the Council of State is decided, on average, in 111 days. Consequently, the time to conclude a public procurement case including two instances could be about 12 months.
It may be useful to highlight that, in Italy, disputes can be resolved by courts of “ordinary jurisdiction” or by courts of “administrative jurisdiction”. The first courts can review every controversy of a civil nature involving the relationship between individuals (such as contract law or corporate law), whereas the second type of courts resolve disputes in which a private entity interacts with a public power.
The following data concerns exclusively the administrative judgments and are provided on the ”Giustizia Amministrativa” website, the official web portal of the administrative jurisdictions in Italy. It may also be appropriate to distinguish between claims to the TAR and appeals to the Administrative Supreme Court. Both challenge the legitimacy of a decision taken by the public administration: TAR as the first instance court, Council of State as the second instance court. With regard to procurement appeals to the TAR, it is estimated that they amount on average to about 4.9% of all administrative litigation.
The typical costs to challenge an award authority’s decision essentially refer to two different kinds of fees: (i) the court registration fee and (ii) the attorney’s fee.
The Court Registration Fee
The court registration fee is a tax that, according to Article 9 of Presidential Decree No 115/2002, any applicant must pay – for any instance and for any type of dispute – for the registration of new litigation. In public procurement, the court registration fee varies in proportion to the value of the tender as indicated in the tender notice. Therefore, concerning proceedings before the court of first instance:
In case of appeal before the court of second instance, the court registration fee is increased by 50%.
Legal assistance from a lawyer is mandatory in the event of an appeal against a decision of the contracting authority: the calculation of this time must be made according to the parameters identified by Ministerial Decree No 55/2014, which provides, in consideration of the value of the dispute, (i) a minimum fee, (ii) an average fee, and (iii) a maximum fee.
In determining the value of the dispute, reference should be made to the “actual gain”, which, according to case law, is an amount not less than 10% of the contract value (see Supreme Administrative Court Opinion No 183/2022). However, sometimes, the effective profit could be specifically indicated within the procurement documents. The attorney’s fee can be increased in relation to particularly complex dispute cases.
During the execution of the contract, changes are allowed within the limits of Article 106 of Legislative Decree No 50/2016 and are subject to authorisation from the Official Responsible for the Procedure (Responsabile Unico del Procedimento, RUP) according to the internal regulations rules of the contracting authority. In particular, contracts may be modified (both subjectively and objectively) without a new awarding procurement procedure in the following cases:
It is also necessary to specify that Decree Law No 36 of 30 April 2022 (Law No 79 of 29 June 2022) provided that number 1), letter c), paragraph 1, of this article “shall be interpreted to mean that the circumstances indicated in the first period also include those unforeseen and unforeseeable ones that significantly alter the cost of materials necessary for the execution of the work”. In such aforementioned cases, paragraph 2-quater provides that “the Contracting Authority or the successful bidder may propose, without new or greater burdens on public finance and without altering the general nature of the contract – without prejudice to the full functionality of the work – a variant during the course of the work that ensures savings, compared to the initial forecasts, to be used exclusively in compensation, to meet the increased changes in the cost of materials”.
According to Article 36 of the PCC, the contracting authorities shall award contracts for works, services and supplies below the thresholds set out in Article 35 in accordance with the following procedures.
For assignments of less than EUR40,000, by direct award even without prior consultation of two or more economic operators or for works under direct administration. In this case, the public administration is not required to publish the contract award decision.
For contracts of an amount equal to or greater than EUR40,000 and less than EUR150,000 for works, or to the thresholds referred to in Article 35 for supplies and services, by direct awarding after evaluation of three possible estimates for works, and, for services and supplies, of at least five economic operators identified on the basis of market surveys or through lists of economic operators, in compliance with a criterion of rotation of invitations. Works may also be carried out by direct administration, except for the purchase and rental of motor vehicles, for which the procedure referred to in the previous period shall apply. In this case, the public administration must publish the measure awarding the contract, also indicating in the measure the candidates invited to bid.
The discipline of the direct awarding of contracts procedure was temporarily amended by the Simplification Decree, as well as the Simplification-bis Decree. The transitional rules apply to all cases in which the contractual determination, or other equivalent internal act of initiating the procedure, has been adopted by the deadline of 30 June 2023. Specifically, Contracting Authorities may proceed to the direct awarding of works, services and supplies, as well as engineering and architectural services, including design activities, for amounts below the community thresholds referred to in Article 35 of Legislative Decree 50/2016 as follows.
It is worth highlighting three significant judicial decisions involving public procurement issues in 2022.
Administrative Supreme Court, Section IV, 31 October 2022, No 9426
In the event that the contractor makes an application for adjustment of the consideration for the services to be performed and in the absence of an express price revision clause, subparagraph (a), and not subparagraph (c), of Article 106 of the Public Contracts Code applies, which, in paragraph 1, punctuates the cases of amendment of contracts, in ordinary sectors and special sectors, without a new awarding procedure. This is because: letter c) makes textual and express reference to those “changes in the subject matter of the contract” that are related to “variants in progress” specifically inherent to the subject matter of the contract on the side of the works to be performed; letter a), on the other hand, in contemplating “changes in prices and standard costs”, regulates the economic aspects of the contract. Moreover, from the same case law of the Court of Justice (judgments 19 April 2018, C-152/17; 7 September 2016, C-549/14), one can draw a substantial neutrality of European law with respect to the possible maintenance remedies that national legal systems prepare to deal with contingencies that affect the economic aspects of the contract, without prejudice to disfavouring solutions that surreptitiously alter the play of competition through direct awards without competition.
Administrative Supreme Court, Plenary Assembly, 25 January 2022, No 2
The Plenary Assembly holds, in particular, that “the subjective change of the temporary grouping of companies, in the event of loss of the participation requirements under Article 80 of Legislative Decree No. 50 of April 18, 2016 (Public Contracts Code) by the agent or one of the principals, is allowed not only during execution, but also during the tender phase, in this sense interpreting Article 48, paragraphs 17, 18 and 19-ter of the same Code”.
The Plenary Assembly goes on to state that, “where the aforementioned hypothesis of loss of requirements occurs, the contracting station, in deference to the principle of procedural participation, is obliged to question the grouping and, where it intends to carry out a reorganization of its structure, in order to be able to resume participation in the tender, it is obliged to assign a reasonable period of time for the aforementioned reorganization”.
Administrative Supreme Court, Plenary Assembly, 26 April 2022, No 7
The issue relates to the scope of operation of the “provisional guarantee” accompanying the bid of participants in the tender process, as it became necessary to determine whether it only covers “facts” occurring in the period between the award and the contract, or whether it also extends to those occurring in the period between the “proposed award” and the award.
Paragraph 6 of Article 93 of Legislative Decree No 50 of 2016 – in providing that the “provisional guarantee” accompanying the bid “covers the failure to sign the contract after the award due to any fact attributable to the contractor ...” – outlines a system of guarantees that refers only to the period between the award and the contract and not also to the period between the “proposed award” and the award.
Finally, it should be noted that Law No 78 of 21 June 2022 on Delegation to the Government in the Field of Public Contractsset out the principles and guiding criteria on the basis of which the new legislative decrees are to be adopted, highlighting in particular the need to comply with the objectives of the European directives, maintaining levels of regulation corresponding to the minimum levels required by the same directives. On the basis of this law, the “first” draft of the new Contracts Code, which will replace Legislative Decree No 50/2016, was prepared by the Commission established at the Council of State to fulfil one of the obligations under the NRP.
On 16 December 2022, the Council of Ministers approved, in preliminary consideration, a legislative decree reforming the Public Contracts Code, implementing Article 1 of Law No 78 of 21 June 2022, delegating the government of public contracts. On 9 January 2023, the government sent the measure to both the Chamber of Deputies and the Senate with an accompanying note dated 5 January 2023.
The PNRR includes, among other objectives to be achieved, the entry into force of this decree by 31 March 2023. The draft decree in question consists of five books and contains a total of 229 articles, as well as 36 annexes.