Summary of "1 L'attività contrattuale pubblica e i principi del Codice dei Contratti"
Summary of L’attività contrattuale pubblica e i principi del Codice dei Contratti
This video, presented by Samanta Battiston, provides an in-depth overview of the reform of the Italian Public Procurement Code, which came fully into effect on July 1, 2023. It explains the rationale behind the reform, the foundational principles of the new Code, key legislative updates, and practical implications for public administrations, economic operators, and the entire public contract lifecycle.
Main Ideas and Concepts
1. Background and Purpose of the Reform
- The reform originates from a delegating law linked to the National Recovery and Resilience Plan.
- It aims to reorganize public procurement following difficulties with Legislative Decree 50/2016 and to implement two EU directives (Procurement Directive and Concessions Directive of 2014).
- Introduces digital lifecycle management of public contracts, from planning to execution.
- Strengthens qualifications of contracting authorities and granting bodies.
- Focuses on coordinated, unified management of the contract lifecycle.
2. Nature of the Public Procurement Code
- The Code is a “code of principles” permeating all procurement activities.
- Emphasizes adequate training for public administration personnel.
- Digitalization and interoperability challenges postponed to January 1, 2024.
- Accompanied by an explanatory report and a corrective legislative decree (Legislative Decree 209 of December 31, 2024), effective January 1, 2025, addressing application difficulties and introducing important amendments.
3. General Principles of the Code (Articles 1-3)
- Competition is a tool, not an end; aimed at achieving the best result for the community.
- Principle of Results: Focus on efficiency, effectiveness, cost-effectiveness, and timeliness in administrative actions and contract management.
- Introduction of maximum deadlines for awarding contracts and linking tender procedures closely with technical design stages to avoid delays.
- Quality-price ratio assessment is flexible, with responsibility on public administration to balance qualitative and quantitative criteria per procedure.
- Principle of Trust: Encourages mutual trust between contracting authorities and economic operators, promoting discretionary decision-making and reducing defensive bureaucracy (“fear of signature”).
- Liability is based on gross negligence, with exemptions when actions are based on prevailing case law or authoritative opinions.
- Mutual trust also reflected in the new “self-cleaning” regulation allowing economic operators to rectify issues during tender processes.
4. Additional Key Principles
- Market Access (Article 3): Promotes competition under principles of impartiality, non-discrimination, transparency, and proportionality.
- Good Faith and Protection of Trust (Article 5): Protects legitimate expectations of economic operators during tender processes, including rights to compensation for economic losses if procedures are annulled improperly.
- Solidarity and Horizontal Subsidiarity (Article 6): Recognizes coexistence of competitive and solidarity-based models for social services, involving third sector entities in co-programming and co-design with public administrations.
- Administrative Self-Organization (Article 7): Public administrations decide on outsourcing or in-house service provision, with accountability focused on achieving universality, sociality, efficiency, and cost-effectiveness rather than purely economic criteria.
- Encourages collaboration between public administrations, including public-public partnerships with limits to avoid distorting competition.
5. Contractual Autonomy and Eco-Compensation
- Public administrations can enter into atypical or gratuitous contracts if institutional objectives are pursued.
- Intellectual work must generally be compensated (eco-compensation), with professional fee schedules regulated by law (Law 49/2023).
- Specific rules apply to awarding architectural and engineering design contracts, including limits on discounts and mandatory application of tariff methods.
6. Specific Provisions on Exclusion and Collective Agreements
- Contracting authorities can set economic, financial, and technical requirements but must respect principles of competition and market openness.
- The principle of specificity prevents overly broad exclusion grounds.
- National collective labor agreements must be identified and indicated in tender documents, including for subcontracted or ancillary services if above 30% of contract value.
- Economic operators can propose alternative agreements if they demonstrate equivalence in protections (economic and regulatory), evaluated through new Annex 1.01.
- Equivalence assessment covers wages, allowances, working conditions, social security, insurance, and workplace safety training.
7. Contractual Balance and Renegotiation (Article 9)
- Introduces the principle of maintaining contractual balance in cases of supervening excessive onerousness due to extraordinary unforeseen circumstances.
- Emphasizes negotiation and renegotiation rather than automatic contract termination.
- The sole project manager plays a key role in managing renegotiation requests.
- Good faith and renegotiation clauses are encouraged to preserve contracts for community benefit.
8. Conflict of Interest (Article 16)
- The concept of conflict of interest includes potential threats, not only concrete ones.
- Economic operators alleging conflicts must rigorously prove both the existence and impact of the conflict on administrative decisions.
- The principle of trust also applies here, demanding transparency and fairness.
9. Jurisdiction and Legal Framework
- Law 241/1990 provisions apply to all procurement phases.
- Administrative courts have jurisdiction over tender procedures and executive phase linked subjective rights.
- Ordinary courts handle contract execution disputes.
Detailed Methodologies and Instructions
Public Contract Lifecycle Management
- Begins with planning/programming.
- Continues through design, awarding, and execution.
- Managed in a coordinated and unified manner.
- A sole project manager coordinates phases and personnel.
Tender Procedure Deadlines
- Maximum time limits introduced for awarding contracts.
- Deadline between technical design approval and tender announcement to avoid delays.
Assessment of Offers
- Public administration determines scoring weights for qualitative vs. quantitative criteria per procedure.
- For architectural and engineering services:
- Fees calculated per Annex 1.13.
- Discounts allowed only on 35% of starting price.
- Economic score capped at 30%, favoring quality.
Mutual Trust and Self-Cleaning
- Economic operators may rectify negative factors post-bid submission.
- Tender panels can request clarifications during the process.
Collective Agreement Identification
- Contracting authorities must specify applicable national collective agreements.
- Must consider sector, region, and representativeness of trade unions.
- Evaluate equivalence of protections if alternative agreements are proposed.
- Use Atico and CPV codes for activity classification.
- Equivalence includes economic and regulatory factors (wages, benefits, social security, safety training).
Contractual Balance and Renegotiation Process
- Parties encouraged to negotiate adjustments in case of unforeseen excessive burdens.
- Sole project manager receives and responds to renegotiation requests.
- Negotiations must be conducted in good faith.
- Termination allowed only if renegotiation fails.
Conflict of Interest Proof Requirements
- Must demonstrate both existence and effect of conflict.
- High evidentiary standard applies.
Reporting and Transparency
- Obligations to report assignments to in-house companies persist under Article 23 and Legislative Decree 2011/2022.
- Public procurement digital platforms and interoperability are being implemented.
Speakers and Sources
- Samanta Battiston – Specialist in public contracts, particularly public administration and economic operator relations, and digitalization in public contracts.
- Council of State – Referenced for rulings and guidance on interpretation of the Code.
- Administrative Courts (TAR) – Referenced for case law supporting principles.
- ANAC (National Anti-Corruption Authority) – Referenced for opinions and regulatory roles.
- Legislative Decrees – 50/2016, 209/2024, 117/2017, 2011/2022, 175/2016, 37/2023, and others as legislative sources.
- Law 241/1990 – Governing administrative procedure.
- Law 49/2023 – On eco-compensation and professional fees.
- Constitutional Court Ruling (2020) – On coexistence of organizational models in social services.
- National Council for Economy and Labor – Maintains database of collective labor agreements.
This summary captures the essential legislative context, principles, and practical instructions conveyed in the video regarding the Italian Public Procurement Code reform and its application.
Category
Educational
