The reform of the Italian public procurement code | Article

1. Introduction

The Italian regulation of public contracts is undergoing a moment of profound renewal, driven by instances of reform aimed at solving some of the endemic problems that have been repeatedly emphasised by practitioners and the European Commission (for a deeper account on the Italian normative framework on public procurement as of March 2023, see the analysis carried out for the Chambers’ Public Procurement and Government Contracts at 2023 this link).

Among the factors of greatest concern are the complexity of the norms, the number and qualification of contracting authorities, the lack of transparency in the publication of some procedures, and the inadequate use of indicators aimed at strategically orienting the selection of economic operators towards sustainability goals.

In order to improve the efficiency of such a sensitive and economically relevant sector, on March 31, 2023 the Italian legislature completed the procedure for the issuance of a new public contracts code with the publication of the Legislative Decree No.36/2023 (hereinafter, the “Code” or the “new Public Contracts Code”).

The new Public Contracts Code entered into force with its Annexes on 1 April 2023, as it is linked to the achievement of the PNRR objectives. According to Article 229, the Code itself and its Annexes will become effective on 1 July 2023.

However, a very articulated transitional phase is envisaged: the old set of rules contained in Legislative Decree No.50/2016 will be repealed as of 1 July 2023, but will remain effective for all the procedures in progress at the date of 1 July 2023 and celebrated before the same date (Article 226).

Moreover, some provisions of the new Code will apply as of 1 January 2024 (thus further extending the effectiveness of the rules of the old set of rules), in particular those on the digitalisation of procedures and therefore relating to the national ANAC database.

2. The style of the reform and the new principles

The new text intends to bring clarity and simplification in the sector first and foremost in the regulatory style.

To reduce the misleading and confused expressions that have been causing endemic litigation, the new text proposes a new writing modality, based on:

the preference for general formula rather than excessively detailed and therefore necessarily incomplete listing of exceptions;
the provision of guidelines (directly coming by the legislator and not by ANAC) to be applied to the single cases by the awarding authorities;
the insertion of the most detailed and technical rules in annexes, not to burden the Code with specific details, e.g. regarding the contents of the tender documents.

This philosophy perfectly fits the introduction of new general principles, inserted in the opening Articles, from 1 to 11.

The inclusion of principles is intended to better follow the changing and flexible dynamic of the public contracts market.

Likewise, those governed by the Code cannot qualify as merely abstract principles; rather, they are intended to be directly binding and immediately employable by the interpreter – first and foremost the awarding authorities, by favouring and expanding while guiding their discretionary power.

The first Article stipulates that contracting authorities should strive for the so-called “outcome principle” in the awarding of public contracts. The placement of that principle as Article 1 reflects the importance that the system intends to put on the achievement of the goal represented by the procurement of works, services and supplies necessary for the public authorities or the community at large. Said result should guide the awarding bodies in the decisions to be assumed in the procedures.

The outcome principle can be read as a specification of the general principles of efficiency and effectiveness of administrative action, the pursuit of which also makes use of peaceful economic rules such as free competition of economic operators.

It is also intended to provide a more significant sense of the rules on public contracts, which should not be only intended as procedural constraints but as meaningful rules intended to substantially contribute to the quality of the administrative action.

Also significant is Article 2, which contains the "principle of trust". It specifies that the relationships between economic operators and awarding authorities should be based on the principle of mutual reliance.

The norm aims to reduce what has been effectively defined as the "fear of the signature" by the operators of the awarding authorities, whose sphere of liability has been considerably widened also due to a general tendency of considering the whole sector as open to corruption and mismanagement.

The purpose is thus to overcome stalls and inefficiencies in the public procurement sector by infusing a generalized sense of confidence in the legitimate action of public administrations.

Public employees are also encouraged to pursue the best result given the provision of incentives (Article 1(4)(b)).

Moreover, the Code expressly considers the relevance of opening up the competition to a wider and wider market of small and medium enterprises, which according to Article 3 should be incentivized to access the tender procedures according to the criteria of impartiality, non-discrimination, publicity and transparency, and proportionality.

Interesting insertion in the Code is also the principle of good faith, which governs the bidding process and obliges both public and private parties to behave fairly toward one another. A timely specification of the principle of good faith is Article 9 headed "principle of preservation of contractual balance." The norm provides that if extraordinary and unforeseeable circumstances arise that are likely to materially alter the original balance of the contract, the party suffering the consequences is entitled to have the contract renegotiated in good faith. Provided, however, that such contingencies are not attributable to the ordinary risk of the contract and that the party suffering from them has not voluntarily assumed the relevant risk.

Numerous are the ambits of concrete applications of the principle, e.g. with regard to Articles 60 "Price Revision" and 120 "Modification of Contracts in Progress. The rule is consistent with the civil law principle of the preservation of the contract, which protects the contractual relationship from supervening facts that could alter its correspondence by determining the dissolution of the bond (Article 1467 of the civil code). It must be made clear, however, that the renegotiation must not have as its purpose to alter the economic substance of the bargain, substantiating itself as an elusive tool (Article 1344 of the civil code) to the rules, explained below, that govern and oblige the selection of the contractor by tender (see also Article 120).

Article 10 is headed "Principles of exhaustiveness of the causes of exclusion and maximum participation," and specifies that a public contract cannot be concluded with an economic operator against whom the existence of one of the causes of exclusion as regulated by the Code has been established. The Article also states that the grounds for exclusion are exhaustive, and clauses in notices and letters of invitation containing the provision of additional grounds for exclusion are null and void.

The general principles part is then completed by the provision of the option for the public authority to make use of an autonomous organization by entrusting it to in-house companies, subject to specific motivation (Article 7), as well as the regulation of horizontal subsidiarity, according to which public entities are inspired in the delivery of social services by a model of shared administration with third sector entities (Article 6).

3. Favor partecipationis: opening the competition to small and medium enterprises

Opening the competition to small and medium enterprises has been one of the most frequently discussed issues in the case law. This includes the most recent judgment of the Plenary Assembly No.2 of 13 January 2023, in which the existing regulation on the participation in a temporary grouping of enterprises was interpreted to allow flexibility in the organisation of the enterprises within the group, also assigning marginal activities to less structured companies.

The mentioned objective is clear, especially in relation to (i) the introduction of a qualitative subdivision of the contracts in lots defined as “single and functionally autonomous procurement objects to be awarded also by separate and autonomous procedure, defined on a purely quantitative basis in accordance with the various categories and specializations present or with the various successive phases of the project”, and (ii) the removal of the ban on subcontracting chains.

The legislation about subcontracts has been gradually modified in order to comply with the requests of the European Union after the judgment C-402/18 and the infringement procedure No. 2018/2273.

As known, the main issues have been: i) the provision of a percentual threshold on the services that can be subcontracted and ii) the subcontracting chain ban.

As for the first one, the Legislative Decree No. 77/2021 erased any thresholds, providing that the contracting authorities can limit the subcontracts only via quality criteria.

Referring to the second one, to restore the compliance of the Italian regulation with the European legal framework, Article 119, paragraph 17 of the new Code eliminates the subcontracting chain ban under the principles of equal treatment, competition and maximum openness to the market.

Nonetheless, the contracting authorities can limit the use of cascade subcontracting, following the principles of trust and result, providing a reason related to, either:

the characteristics of the contract and the complexity of the services/works to be performed;
to the need to strengthen the control of worksite activities and more generally of workplaces or to ensure more intensive protection of working conditions and the health and safety of workers; or
the need to prevent the risk of criminal infiltration (it is not required if subcontractors are registered on the “white list” referred to in Article 1, paragraph 52 of Law No.190/2012, or included in the anti-mafia registry of performers pursuant to Article 30 of Law Decree No. 189/2016).

The provisions of Article 119, paragraph 17 of Legislative Decree No.36/2023 will apply as of July 1, 2023.

4. Simplification and digitalisation

The structure of the Code reflects the central role of digitalisation: a specific part of the text, entitled “digitalisation of procurement lifecycle”, immediately follows the general principles. The reform aims at ensuring the digitalisation of the entire procurement lifecycle, which means that any activity and proceeding included in that lifecycle shall be implemented with digital instruments. At the same time, safety and data protection should be safeguarded by the reform (Article 19).

One of the new principles established by the Code is the once-only, according to which each piece of data must be provided by the owner only once to a single information system. Data received is shared by the receiving information system with others without asking the operator for it again.

To simplify and speed up, a new system of interlinked digital platforms is created (Article 22). This system should communicate with the national public procurement database (BDNCP), handled by ANAC, and with the databases used by the single contracting authorities. The Code specifies that the obligations to provide information to the BDNCP, through digital platforms, also apply to contracts directly awarded to in-house companies (Article 23). Finally, to ensure that all tenders go through the enabled platforms, it is stipulated that the contracting authorities that do not have their own platform must use those provided by others (Article 25).

In the new digitalized procedures, the economic operator's virtual file assumes an important role in making it easier to verify the existence of requirements and the absence of grounds for exclusion on the part of the operator (Article 24).

ANAC is responsible for the legal publicity of acts (Article 27) and data related to each tender, including the list of invited economic operators (Article 28).

Moreover, the Code requires procurement authorities to adopt automatic procedures using IT and other technological tools, to foster efficiency (Article 30). Principles of comprehensibility, non-exclusivity of algorithmic decision and algorithmic non-discrimination are established in this field.

Digitalisation also applies to the access to tender documents: to ensure the maximum transparency of the procedures, Article 35 states that the contracting authority will have to ensure the economic operators have access to the tender documents through direct acquisition via digital platforms.

5. Green and social public procurement

The Code also implements the goal to develop the PNRR’s social and environmental sustainability policies and is aimed at adapting the relevant regulation to the European law and principles; to guarantee the effectiveness of such provisions, the legislature has given ANAC the power to apply administrative sanctions in case of violation of the relevant provisions.

5.1. Social public procurement

To promote “social and occupational inclusion”, Articles 57 and 61 of the Code provide that the tender notices shall list specific clauses to guarantee the inclusion and a safer working environment for the economic operator’s/subcontractor’s employees within the “necessary requirements of the offer”. To this extent, according to Article 61, contracting authorities can limit the participation in the procurement procedures (or their execution) to economic operators whose main goal is to promote the social or professional integration of disabled/disadvantaged people.

Moreover, the contracting authorities, within the tender notice, require economic operators and subcontractors to ensure the employment stability of their staff, compliance with the relevant collective agreements and occupational inclusion for people with disabilities or disadvantages. To guarantee the effectiveness of such a goal, the Code imposes the insertion of specific requirements for the economic operator in the tender documents.

5.2. Green public procurement

According to the second paragraph of Article 57, minimum environmental criteria (MEC) shall be inserted in the tender rules. According to this provision, contracting authorities will evaluate MEC-compliant tendering procedures in order to develop a market of eco-sustainable goods and services.

In this respect, it is worth noting that, by the end of 2022, the Ministry of the Environment and Energy Security published a new set of MECs in the areas of construction and urban waste management, aimed at reducing the environmental impact of building construction and maintenance, as well as the management of related buildings, to limit the production of waste through more efficient waste-management chains and developing ecological transport systems for urban waste. The Ministerial Decrees also disincentivised the use of single-use materials, preferring the exploitation of durable and recyclable products and promoted digitalisation to reduce the use of paper.

6. The parties involved in the procedures

6.1. The contracting authorities

For the first time, the new Code makes a substantial distinction between qualified and unqualified contracting authorities.

Indeed, it is provided that contracting authorities may directly and independently purchase supplies and services, and award works, only within certain threshold amounts, set by the Code. Specifically, all contracting authorities may, without being qualified, purchase supplies and services for an amount not exceeding the thresholds set for direct awards, and award works for 500,000 euros or less.

In order to carry out procedures above these threshold amounts, contracting authorities must be qualified, instead. If not qualified, they must use the procurement tools made available by other qualified contracting authorities or qualified central purchasing bodies or use the ancillary purchasing activity of other qualified entities (Article 62).

A special Annex to the new Code (Annex II.4) provides for the requirements necessary to qualify. Each contracting authority that meets the requirements set out in Annex II.4 achieves qualification and is included in the list of qualified entities managed by ANAC. It is also provided that certain types of entities and public administrations (e.g., those formed by unions of municipalities) are qualified by definition.

Annex II.4 expressly states that the qualification of contracting authorities and central purchasing bodies is needed to certify their ability to directly manage the purchase of a good, a service or a work, according to criteria of quality, efficiency and professionalization, and in compliance with the principles of economy, effectiveness, timeliness and fairness.

Article 63 provides for three levels of qualification for the design and award of contracts, which are assigned by ANAC based on self-declared requirements: levels are awarded mainly taking into account internal organization, expertise and staff training, as well as based on the tenders held in the previous five years. Of course, each contracting authority or central purchasing body can only carry out the procedures corresponding to the level of qualification held, or lower levels.

6.2. The economic operators

The new Public Contracts Code clarifies some aspects of the provisions of the Legislative Decree No. 50/2016 on the modalities of participation in public tenders that are considered to be excessively generic or imprecise. One example is the discipline of the consortia, which is now detailed with regard both to the possibility to cumulate the subjective requirements and to the extent to which the joint companies can avail themselves of other companies’ requirements.

The most striking modifications regard, however, the discipline on the grounds for exclusion from the tender and the assessment of the “integrity” of the company. These two aspects are deepened below.

6.2.1. Grounds for exclusion

The new Code modifies the overall structure of the discipline on the grounds for exclusion.

First of all, Article 80 of Legislative Decree No.50/2016 is now split into five different provisions to facilitate the consultation.

Following the principles established by the national and European case law, the new Code distinguishes explicitly between the automatic grounds for exclusions, provided by Article 94, and the non-automatic ones, regulated by Article 95.

As per the grounds for automatic exclusion, from a substantive standpoint, Article 94 has incorporated some case law approaches.

In particular, it:

includes the conviction of the de facto administrators;
excludes the convictions of the majority stakeholder in a company with four or more stakeholders;
allows participation of companies in conditional insolvency arrangement, as established in the Council of State, Plenary Assembly No.9/2021; and
gives special relevance to the administrative liability of the company in the face of the commission, by a person within it, of a criminally unlawful conduct under Legislative Decree No.231/2001 (previously the exclusion from the tender was possible only if the economic operator received a prohibition of contracting with the public administration pursuant to Article 9 of Legislative Decree No.231/2002).

Regarding the “non-automatic” grounds for exclusion (previously mostly regulated in paragraph 5 of Article 80 of Legislative Decree No.50/2016), Article 95 tends to maintain the ones provided by Legislative Decree No.50/2016

However, Article 98 contains an autonomous provision regulating the so-called serious professional misconduct, detailed on the basis of the suggestions by ANAC guidelines and the case law. Just to give an example, the new provision contains an explicit reference to the sanctions by the Anti-Trust Authority, as well as a new set of hypotheses attributable to omission or false declarations.

Serious professional misconduct includes the commission of the crimes that also provoke the administrative responsibility of the company under Legislative Decree No.231/20021; under the new provision, the contracting authority can exclude the economic operator even if the commission of the crime relevant to Legislative Decree No.231/2001 is only contested: thus, the request of indictment of the suspect carrying an apical function in the company is sufficient ground for exclusion.

Moreover, Article 96 provides a discipline for a procedure applicable to all grounds for exclusion. In particular, it clarifies:

which declarations are actually mandatory;
the duration of the period during which the prior exclusion must be declared in the future public tenders; and
which measures can be qualified as self-cleaning (the application of this institution, harmoniously with the Euro-Union framework, is wider than the existing provision); specifically, such measures may consist of compliance programmes and crime risk management models, which may be particularly useful in the case of subcontracting to other operators, who should apply appropriate risk prevention and management measures.

Lastly, Article 97, constitutes an autonomous provision concerning “Ground for exclusion of joint venture” differently from the previous set of rules, in which the grounds for exclusion of joint-venture were disciplined by two paragraphs of the general norm on joint-venture. Moreover, it is now possible to oust or replace the company affected by a ground of exclusion that occurred before the submission of the bid and not only in case of subsequent loss of the requirements. Thus, the principles affirmed by the Court of Justice in its judgment C-210/2020 referring to the availment are extended to joint-ventures.

The provisions of Articles 94-98 of Legislative Decree No.36/2023 will apply as of July 1, 2023.

6.2.2. The company’s reputation

Article 109 regulates the so-called company’s reputation, replacing the rating system provided by Article 83, paragraph 10 of Legislative Decree No. 50/2016.

Even if with a different name and autonomous provision, the provision keeps the same meaning: it is a mechanism based on an evaluation of the company’s reliability and reputation managed by ANAC. Moreover, the new Code simplifies the current discipline and entrusts ANAC to detect the standards for the above-mentioned evaluation.

Lastly, Article 109 is designed to balance the objectives of the reward mechanisms and the necessity to safeguard the competition and to keep open the public procurement market, avoiding barriers to the entry of new economic operators.

The third paragraph of the new Article 109 states that "This provision shall be implemented within eighteen months from the date of entry into force of the code, also taking into account the results obtained in the initial period of experimentation".

6.3. The new role and powers of ANAC.

Article 222 of the Code reorganises the role and the powers attributed to the Anticorruption Agency - ANAC previously listed in Article 213 of Legislative Decree No.50/2016.

The regulation intends to strengthen the supervisory functions of ANAC and to provide contracting authorities with “concrete support” in the performance of tender procedures, also to promote the uniform use of good practices.

However, Article 213 eliminated ANAC's power to adopt acts of soft law (such as guide lines), which played a central role in the uniform interpretation and application of the public procurement regulation; the already-adopted guidelines issued by ANAC under the Legislative Decree No.50/2016, as well as the implementing discipline, are contained in the implementing rules adopted within the framework of the Code. However, the legislator has preserved ANAC’s power to implement standard model contracts and invitations to tender.

As referred to in the previous paragraph, to compel the use of good practices and the compliance of the tender procedures with the Code, the authority can also apply specific sanctions.

Within the perimeter of its powers listed in letters b), f), l), m) of Article 213, ANAC may impose administrative fines ranging between € 50 and € 5,000 for ascertained violations, in compliance with the principles of Law No.689 of 24 November 1981 and in accordance with its own regulations; the application of fines can also have an impact on the bonus system for the qualification of contracting stations as provided by Article 63.

Furthermore, it should be noted that the perimeter of ANAC’s sanctioning power can be extended by means of specific law provisions, the adoption of which was deemed to be appropriate by the authority itself as the attributed powers, although consistent, are still considered not to be sufficiently incisive.

In addition, the role of ANAC in supervising the performance of public contracts has been broadened, as its powers are no longer limited to checking the cost-effectiveness of the contractual relationship, but they extend to monitoring the correctness of the performance of the obligations.

Lastly, it is worth observing that to facilitate the creation and maintenance of a national register containing the relevant information of the public contract system, the authority can impose specific sanctions whether the contracting authorities fail to communicate the data to update the national public contracts database.

7. The value of the contract

7.1. The awarding of sub-threshold tenders

The procedures for awarding contracts below the thresholds introduced by Decree-Law No.76/2020 to speed up and simplify public evidence procedures are implemented in the new Code (Article 50).

With specific reference to works the following procedures are established:

direct awarding for an amount of less than €150,000, even without consulting several economic operators, ensuring that subjects with documented experience suitable for the performance of the contractual services are chosen, also identified among those registered in lists or registers established by the contracting authority;
negotiated procedure without prior call for competition, after consulting at least five economic operators, where they exist, identified through market surveys or through lists of economic operators, for an amount equal to or greater than €150,000 and less than €1 million;
negotiated procedure without a call for competition, after consulting at least ten economic operators, where they exist, identified via market surveys or through lists of economic operators, for an amount equal to or greater than €1 million and up to the thresholds of European Community relevance, without prejudice to the possibility of resorting to ordinary procedures (the reference to adequate justification has been eliminated in the final text, although the Council of State in the Explanatory Report points out that the choice of the more complex ordinary procedures requires a balancing of the public interests at stake).

As for services and supplies (including engineering and architectural services and design activities) the following procedures apply:

direct awarding for an amount of less than EUR 140,000, even without consulting several economic operators, ensuring that subjects with documented past experience suitable for the performance of the contractual services are chosen, also identified among those registered in lists or registers established by the contracting authority;
negotiated procedure without prior call for competition, after consulting at least five economic operators, if any, identified on the basis of market surveys or through lists of economic operators, for amounts equal to or greater than €140,000 and up to the European Community thresholds.

Operators must be chosen according to objective criteria, chosen based on the principles of non-discrimination, proportionality and transparency. Drawing lots or other methods of randomly selecting names are only permitted in exceptional cases where recourse to the above criteria is impossible or would entail burdens on the contracting authority that would be incompatible with the rapid conduct of the procedure. The criteria for selecting the operators to be invited to the negotiated procedure must be indicated in the contract award decision or in another equivalent document.

The new Code innovates also on the principle of rotation and selection of operators by drawing lots. Specifically, it is provided that:

for contracts awarded through negotiated procedures without a call for competition, contracting authorities shall not apply the principle of rotation when the market survey has been carried out without setting limits on the number of economic operators meeting the requirements to be invited to the subsequent procedure (Article 49, para. 5);
it is prohibited for contracting authorities to use, for the purpose of selecting the operators to be invited to the negotiated procedures, the drawing of lots or any other method of randomly drawing names; however, its use is still permitted, in the presence of particular and specifically justified, in cases where no other method of selecting operators is feasible (Article 50, para. 2).

7.2. Price Revision

Further, the new Code introduces the mandatory inclusion of price revision clauses in all tender documents.

It is worth noting that the former Article 115 of Legislative Decree No.163/2006 prescribed an automatic adjustment in the presence of certain conditions. This provision was modified in the 2016 set of rules to allow the contracting authorities to evaluate discretionally the opportunity to insert such a clause.

In light of the higher prices caused (also) by the COVID-19 pandemic and the war in Ukraine, the Lawmaker introduced:

Article 1 septies D.L. 73/2021 to compensate for the increased cost of the construction materials;
Article 4 D.L. 4/2022 to mandate a price revision clause in all tenders published after 28 January 2022.

As for the new Public Contracts Code, Article 60 provides for:

an obligation for contracting authorities to include a mandatory price revision scheme in all calls to tender upon the occurrence of special conditions of an objective nature and not foreseeable at the time of formulation of the tender;
an indexing model, in order to facilitate and make the application of revision faster and “safer”;
a definition of the trigger values and identification of the fixed component of the revision (reference will be made to an increase or decrease variation of more than 5% of the total amount of the originally planned contract); and
the financing of the increased charges resulting from the revision, to be done in accordance with the expenditure accounting procedures.

Lastly, the reformed Article 192 provides that, upon the occurrence of supervening, extraordinary and unforeseeable events, the concessionaire may request a revision of the contract only to the extent strictly necessary to bring it back to the levels of balance and risk transfer agreed upon when the contract was signed.

8. The initiation of the tender procedure

8.1. Notices and invitations, where and how they are regulated in the new Code

The framework concerning the content and publication of notices comes under a specific title, the second one, of Part V dedicated to the rules concerning the conduct of procedures.

Articles 83 to 90 shall be read with the Annexes to the Code and Article 49 ff. of Directive 2014/24/EU of the European Parliament and of the Council of 26 February 2014 regarding public procurement, and its annexes.

The fundamental principle is directed to simplification also in the style of the standards under analysis, which are more slimline, also due to the references to the Annexes. Simplification, trait d'union of the entire Code, is connected with the standardization of tender documents. Important in this regard is the provision of the need for tender authorities to comply with the model notices adopted by ANAC, unless adequate motivation is given for deviations from the standard notices, to be included already in the decision to contract (Article 83.3).

The general rule expressed in Article 83 is that tendering procedures be announced by tender notices, that contain a range of information indicated already in Annex V of Directive 2014/24/EU regarding procurement. The previous normative frame, on the other hand, expressly indicated the cases in which awarding by tender might not be practiced, in strict compliance with Article 54 of the European Directive.

The legislator has thus preferred a broad formulation of the rule, more adaptable to the exceptions that might be made in specific cases, difficult to precisely define by general regulations.

Pursuant to Article 82, constitute tender documents: (a) contract notice or letter of invitation; (b) tender specifications; (c) special specifications; (d) contractual conditions and whose contents are specified in Articles 83, 87 and 89.

To these is added the pre-information notice, through which contracting authorities shall announce before 31 December of every year the will to tender for the following year.

Regarding the content of tender notices, described in detail in Annex II.6, it appears important to highlight the introduction of the explicit reference to the tender process duration and to the minimum environmental criteria (Article 83.2).

The tender rules (“disciplinare di gara”) define the discipline for selecting the offers presented (Article 87.1), while the technical rules (“capitolato speciale”) indicate the characteristics of the contractual relationship that is being established through the procedure.

For procedures not implying the publication of a tender notice, i.e. the restricted one, the competitive dialogue, innovation partnerships and competitive procedures with negotiation, Article 89 provides that contracting authorities shall invite, simultaneously and in written form, the selected candidates to submit their tenders or to participate in the dialogue if it is a competitive one.

Regarding invitations to candidates, the first paragraph of Article 54 of Directive 2014/24/EU is reported in full, with the only distinction concerning the modalities of the invitation, which will be communicated through digital procurement platforms. It is required that these invitations shall contain specific content, indicated in Annex II.9, such as the deadline for the submission of the offer, and indicate the link to where tender documents have been made directly available digitally.

The publication of tender documents is ruled by Articles 84 and 85, respectively dedicated to European and national publication.

The notices, pre-information notices and notices for above threshold contracts, are drawn up by the contracting stations and sent to the Publications Office of the European Union for announcement.

Following the European publication, it is published on ANAC's national public contracts database and on the institutional website of the contracting or awarding authority.

From the national publication made by ANAC the legal effects of the tender acts take effect, according to Article 27. Documents are then made available digitally through a link (Article 85 e 88).

Also in the new Code, it is stated that contracting stations shall communicate within 5 days some relevant facts such as an interruptive event in the procedure, such as the non-awarding of a tender; to the successful tenderer the fact of having been awarded the contract; to bidders the event of the award and the indication of the winner; the motivated exclusion of the excluded candidates.

To the aforementioned forms of publicity, the initial deadlines must now be reconnected under Article 120 paragraph 2 of the Administrative Procedural Code (Legislative decree No.104/2010).

9. Types of Contract

9.1. Reduction of design phases and integrated procurement

Among the novelties introduced with the new Code that will directly affect technical professionals from 1 July 2023 are Articles 41 and 42, which concern the levels of design and related verifications.

In fact, the design of public works is now divided into two levels: the technical-economic feasibility project and the executive project; the so-called “final project” (“progetto definitivo”) is thus eliminated.

According to Article 42, for works contracts, both the Administration and the competent authorities verify the compliance of the project with the requirements expressed in the policy document and its conformity with the regulations in force.

The verification activity occurs during the project process and also includes compliance with the prescriptions issued by the competent authorities during the steering committee, with no further approvals/authorisations required.

In the case of the joint award of design and execution, as well as in public-private partnership contracts, the verification of the technical-economic feasibility project is completed before the start of the award procedure and the verification of the executive project drawn up by the contractor is carried out before the start of works.

In this regard, a case of jointly entrusting design and execution is the integrated contract.

Integrated procurement, namely an agreement that includes both the design and the execution of a project, was prohibited by Article 59 of the Code. However, the previous text provided for some exceptions: it was allowed, for example, in specific types of award, such as the general contractor, the project finance agreements, concessions, public-private partnerships, the financial lease and the realisation of urbanisation works over the contract’s amount.

The above-mentioned prohibition was suspended until 30 June 2023 by Article 1, paragraph 1(b) of Law No.55/2019, as amended.

Under the new Public Contracts Code, Article 44 allows the administration to stipulate the integrated procurement contract, covering both the executive planning and execution of works on the basis of an approved technical-economic feasibility project, with the exclusion of those having at an object “ordinary maintenance activities”.

The Administration’s decision to use such a regime shall be justified. Additionally, according to the new Code, the most economically advantageous tender award criterion is the only one allowed for the evaluation of the best bid in such cases.

As anticipated, this is one of the most debated points of the new Code: both ANAC and the Parliamentary Commission fear that the reintroduction of integrated procurement would substantially reduce the competition among SMEs.

9.2. General contractor

Part VI of the new Code on “global services” regulates the discipline of the general contractor, which in Italy has been used for the realisation of relevant public works by turnkey procurement contracts. The new provisions (Articles 203 and 204) better define the object of the contract, which provoked numerous interpretation doubts, by inserting the new concept of global services, intended as “heterogeneous services, aimed at completing, operating, maintaining or financing works or services for the best administrative result”.

The instrument is confirmed for works above EUR100 million. The new discipline details the content of the tender notice, specifies some procedure technicalities and relevantly indicates the administrative and work-related risk assessment between the contracting authority and the private contractor. The long-awaited reform of the qualification system for general contractors is entrusted to the Minister of Infrastructures and Transportation.

The transfer of the operational risk to the economic operator is what differentiates these contracts and PPP contracts. In fact, this does not occur for the general contractor, whereas it does for the PPP contracts.

9.3. Public-private partnerships (PPPs)

The new Code provides a more specific definition of public-private partnerships, intended as forms of co-operation between public and private entities aimed at financing, realising, and operating public infrastructures or providing public interest services (Article 174).

As envisaged by the relevant EU regulation, and now mentioned in the Code, the PPP occurs when:

the contractual relationship between the private party and the administration is long-term;
the financial needs of the project are covered by the private party;
the implementation and management of the project are entrusted to the private party, while the goals are set up by the public administration; and
the operational risk is allocated to the private entity.

According to the new discipline, the PPP should be performed by (i) typical contracts such as concession, financial lease and availability contracts or by (ii) atypical contracts, as regulated by private-sector regulation.

The Code makes provision regarding the following.

Only awarding authorities and awarding entities as defined in Article 1 of Directive 2014/23/EU (referred to as “grantor entities”) may use PPPs.
To promote the submission of proposals by enterprises, the operator has the pre-emption right over the realisation of its project. The administration, within the tender documents, can substitute the pre-emption right with a reward score to be assigned to the proposing party. This decision must be justified.
The share of investment allocated to the project in terms of research, development and technological innovation should be rewarded by the Administration.
The 49% public contribution limit is eliminated. In accordance with the stipulations of the recent ANAC Resolution No.432/2022, the contents of the Eurostat decisions should be applied.

Among the PPP models, project financing undergoes the most significant changes. In particular:

the grantor entities can solicit the submission of project finance proposals;
the necessity to grant the feasibility of the project finance proposals with a bank deposit is eliminated;
the creation of a special purpose vehicle is mandatorily required (in other forms of PPP it is merely optional);
the SPV can award directly works and services to its shareholders.

Another important novelty is the introduction of a specific Article (Article 200) governing the energy performance contract (“EPC”).

The definition EPC was introduced by Directive 2012/27/EU and then transposed by Legislative Decree No.102 of 4 July 2014 in order to promote energy efficiency.

To this extent, according to the relevant regulation (please see Article 2 of the aforementioned Legislative Decree and Article 1, number 27, of the Directive), the EPC "means a contractual arrangement between the beneficiary and the provider of an energy efficiency improvement measure, verified and monitored during the whole term of the contract, where investments (work, supply or service) in that measure are paid for in relation to a contractually agreed level of energy efficiency improvement or other agreed energy performance criterion, such as financial savings”. The object of the contract is therefore the achievement of an energy efficiency improvement measure".

Unlike the previous discipline, under which the EPC was governed by the general rule on public-private partnerships, with the Code a specific regulation has been introduced with the aim of highlighting the special nature and importance of EPCs, operating in a sensitive and strategic sector such as energy.

Furthermore, another important PPP model that has undergone important changes is the financial leasing contract. In this sense, paragraph 2 of Article 196 introduced the possibility for the leasing company to purchase an existing or to be realised and transfer it for use, for a specific period of time, to the public administration against the payment of a fixed periodic fee and including any accessory services.

In addition, the tenderer may be a temporary alliance of operators consisting of a financing party and several executing parties. In this case, each party is liable for the specific obligation undertaken (as now provides paragraph 5 of Article 196). In order for the leasing contract to be awarded, the financial plan must also be submitted together with the feasibility project.

Finally, as previously indicated by ANAC, the PPP rules may be applied to leasing contracts only if the contractual scheme provides for the transfer of the operating risk. Otherwise, the provisions on public works contracts shall apply.

9.4. Concessions

The Code also clarifies the relationship between concession and project financing, which should not be intended as two different types of contracts. In particular, the concession contract may be financed, either in “corporate financing” or “project financing”.

Thus, the concession scheme should also be extended to projects in which the private operator provides services directly to the public administration, deriving its remuneration mainly from the latter’s payments. Differently, the Code provides that “the majority of the concessionaire’s operating revenues come from the sale of services rendered to the market” (Article 165).

Moreover, the new Code implemented what the Constitutional Court decided by judgment No.218 of 2021 regarding the obligation to entrust to third parties, even in the case of concessions that have already been granted, renewed or extended, thus providing:

to exclude from the scope of the rule concessions of public works and services falling within the so-called special sectors;
to replace the threshold of EUR150,000 in the amount equal to or greater than the thresholds of Community importance;
that the proportion of the awards to be made by public tender procedure be identified by agreement between the grantor and the concessionaire;
the establishment of a minimum and maximum share of outsourcing of concessions equal for both works and services and supplies.

As for the hypotheses of termination and cancellation of the concession, the two disciplinary profiles (which were mixed in the previous normative frame), i.e., termination and withdrawal, are clearly distinguished. The term “termination” replaced the term “revocation” to refer to the act by which a party can unilaterally dissolve from the bond.

With reference to the asset profiles related to the takeover of one concessionaire by another, it is provided that, upon the expiration of the concession period and as a result of the new concession, the networks, the facilities and the other assets considered essential for the continuation of the service would be assigned to the new operator.

9.5. Strategic and pre-eminent national interest infrastructures

Article 39 of the new Public Contracts Code simplified and accelerated the administrative procedures for the planning and construction of strategic and pre-eminent national interest infrastructures (i.e. motorways, railways, underground railways, ports), in order to modernize and develop the national infrastructure network and therefore increase Italy's competitiveness in the context of the European Union.

The final decision to classify an infrastructure as strategic and of pre-eminent national interest, the realization of which has the character of urgency, is issued by the Italian Government by resolution of the Council of Ministers. The Italian Government then inserts this priority infrastructure in the so-called Economic and Financial Document with an indication of the expected performance criteria, the outcomes of the assessment of the project alternatives, the estimated costs with the relative financial allocations and the timetable for realization.

To implement the concentration of administrative activities, the contracting authorities must submit the technical and economic feasibility project of the priority infrastructure to the competent public authorities, which evaluate the project in the context of a Steering Committee and approve it with a reduced timeframe compared to the ordinary timeframe regulated by Article 38 of the new Public Contracts Code concerning works whose execution is not urgent at a national level.

To further speed up the authorization procedure, it is envisaged that qualified disagreements with which certain public authorities do not allow the construction of the infrastructure may be replaced and overcome through a decree of the President of the Council of Ministers, at the proposal of the Minister of Infrastructure and Transport.

The final decision with which the construction of the strategic infrastructure is approved constitutes a measure with multiple and complex content in terms of authorization, including all the agreements between the territorial entities (also for the purpose of the location of the infrastructure), ascertaining the urban and landscape compliance of the intervention and providing for the resolution of the interferences and the relative mitigating and compensating works. Moreover, this decision has the effect of a variation to the urban planning plans; it includes the Environmental Impact Assessment, the building permits required for construction and the declaration of public utility as well as the constraint preordained to expropriation.

9.6. Special sectors

The new Public Contracts Code has made the regulation of contracts awarded by contracting authorities operating in the Special Sectors (i.e. Gas and Heat, Electricity, Water, Transport and Postal Services, Ports and Airports and Extraction of Oil and Gas and Exploration or Extraction of Coal or Other Solid Fuels) more complete and organic, to introduce a discipline fully compliant with the provisions of Directive 2014/25/EU and to facilitate economic operators.

The main change compared to the previous text is the transfer to the regulation of Special Sectors of the provisions derogating from the application of the new Public Contracts Code for contracting authorities operating in these Sectors. In particular, the new text does not apply to public contracts awarded (i) by a joint venture, exclusively composed of several contracting authorities or contracting entities for the purpose of carrying out one or more activities in the special sectors, to one of these contracting authorities or contracting entities or (ii) by a contracting authority or contracting entity to the joint venture of which it is a member. Similarly, the Code does not apply to public contracts awarded by a contracting authority or a joint venture to an affiliated undertaking and to activities in the Special Sectors that are directly exposed to competition on freely accessible markets.

A further innovation is the more precise identification of the provisions of the Ordinary Sectors that apply to the Special Sectors, avoiding the use of general clauses. More specifically, given the need to avoid procedural constraints in addition to those at EU level (i.e. gold plating), the new Public Contracts Code confirms references to the Ordinary Sector regulation only in those cases where the provisions being compared (dictated for the Ordinary and Special sectors) actually correspond; instead, it was preferred to make the Special Sector regulation autonomous with respect to those institutions characterized by fewer constraints or by inconsistent regulation with respect to that provided for the Ordinary Sectors.

10. Novelties on the special judicial procedure for public contracts introduced by the Code.

As known, Article 120 of Legislative Decree No.104/2010 introduced a special judicial procedure for disputes concerning public procurement procedures faster than the ordinary one and with its own judicial terms.

The mentioned derogatory discipline underwent minor changes that will come into effectiveness with the entry into force of the Code.

In this regard, firstly it should be observed that according to Article 209 of the Code the perimeter of application of the procedure (i) has been extended to disputes concerning public concessions tenders and agreements governed by the Code and (ii) it now covers actions asking for damages brought by the contracting authority against the economic operator who, in breach of its duties of fairness, contributed to the unlawful awarding of the public contract.

The solution adopted by the new text falls within the scope of the decision the Council of State, Plenary Assembly, No.2/2017, and it aims at increasing the speed and uniform application of the court decisions, also in light to attribute in-depth ‘self-responsibility' to operators participating to public tenders.

Secondly, it is worth noting that the time limit for appealing the measures adopted within the tendering procedures has been modified.

Indeed, the 30-days period to challenge the unlawful measures issued within the tender procedure starts to run from the communication pursuant to Article 36, paragraphs 1 and 2 of the Code. In the case of notices announcing a call for competition that are independently injunctive, the time limit starts to run with the publication pursuant to Articles 84 and 85.

Furthermore, it is relevant to observe that to challenge plural acts of the same tender procedure the payment of the “judicial tax”, the high cost of which constituted an unnecessary economic aggravation of the appeal, is unique.

Lastly, it should be noted that the new Code also provides for a system of alternative dispute resolution regarding the execution of the contract. The ADR is entrusted to the Collegio Consultivo Tecnico (CCT) - Technical Advisory Board. For works with a value above the European threshold, the establishment of the CCT is mandatory. The CCT expresses opinions (which are always mandatory in cases of suspension of the execution of public infrastructures) and, if the parties to the contract adhere to them, these opinions may result in decisions having the force of an arbitral award.

11. Conclusion

The Code surely introduces interesting aspects of innovation and clarification that will help to streamline the procedures and achieve important results in terms of value generated by the execution of works, services and supplies to public administrations and to the community.

However, it is possible to envisage the launch of a period of verification through the application of the norms and correction of the provisions, also in light of the fact that numerous contracting authorities have declared a difficulty in adapting to the new system of rules within the established deadlines.

One of the most controversial points is the concern regarding the thresholds below which contracts can be awarded directly.

According to ANAC’s President, excessively high thresholds for direct awards and negotiated procedures may induce a significant decrease of the contestability and control over the procedures celebrated for the highest number of contracts.

In addition to this, ANAC pointed out a flaw in the current regulation, which gives the Procedure Manager (RUP) the possibility to bypass the procedures for procuring services in support to its office of a value not exceeding 1% of the tender amount. The limit assigned for these direct awards may be significant in case of high-value contract and could provoke a contrast with the EU Directive.

To solve this kind of issues, ANAC has already provided its availability to collaborate with the Government towards the realization of a truly efficient public contracts framework.