Changes during construction: the possibilities for intervention by the project manager

The regulatory path

In Legislative Decree 163/2006, now repealed and currently replaced by Legislative Decree 36/2023, paragraph 3 of article 132 (variations in progress) stated:
…”3. Interventions arranged by the director of works to resolve detailed aspects which are contained within an amount not exceeding 10 percent for the remediation and safety of contaminated sites, not exceeding 10 percent for recovery, renovation, maintenance and restoration works and 5 percent for all other works in the work categories of the contract and which do not involve an increase in the amount of the contract stipulated for the construction are not considered variations pursuant to paragraph 1. of the work.”…

In this case the regulatory requirement is extremely clear regarding the detailed work:

• they must be less than 10 or 5% of the works indicated, or they must not affect those categories of works more than the percentages indicated;
• they must not produce an increase in the overall contractual amount (in this case we only speak of an increase).

The concept leaves no doubt and is reiterated, again in the same Legislative Decree 163/2006 in paragraph 2 of article 205 (cultural heritage area), in this form:
…” 2. Interventions arranged by the director of works to resolve detailed aspects, aimed at preventing and reducing the dangers of damage or deterioration of the protected assets, which do not qualitatively modify the work as a whole and which do not lead to an increase or decrease of more than twenty percent of the value of each processing category, without modifying the overall contractual amount, are not considered variations during construction.”

For cultural heritage, therefore, without prejudice to the constraint of non-modification of the contractual amount, some points are established:

• the changes are aimed at preventing or reducing the risk of damage;
• they must not qualitatively modify the work;
• they cannot affect (increasing or decreasing) more than 20% of each processing category;
• they must not modify (to be understood as increasing or decreasing) the overall contractual amount.

We arrive at Legislative Decree 50/2016 where the only references to detailed changes are found in paragraph 1 of article 149 (cultural heritage area) where it is specified:
“…1. Interventions ordered by the director of works to resolve detailed aspects, aimed at preventing and reducing the dangers of damage or deterioration of the protected assets, which do not qualitatively modify the work and which do not lead to an increase or decrease of more than twenty percent of the value of each individual processing category, within the limit of ten percent of the overall contractual amount, if there is financial availability in the economic framework among the sums available to the contracting authority, are not considered variations during construction.”…

The provisions of this paragraph are:

• are aimed at preventing or reducing the dangers of damage;
• they must not qualitatively modify the work;
• they cannot affect (increasing or decreasing) more than 20% of each processing category;
• must fall within the limit of 10% of the total contract amount if there is availability in the sums available in the economic framework.

The reference to the financial availability of 10% in the economic framework makes this variation an increase in the contractual amount, ordered by the director of works (if it were not a contractual increase it would not be necessary to use any savings extracted from the sums available) in conflict with two legally consolidated principles:

• the works manager does not have independent negotiating power (exclusive of the decision-making body of the contracting authority);
• the variation of the contract, up or down, constitutes a substantial modification and conflicts with the principle of maintaining contractual balance (article 9 of Legislative Decree 36/2023) which the Legislative Decree is not entitled to regulate.

Subsequently we arrive at paragraph 7 of article 8 of Ministerial Decree 49/2018, a decree not explicitly repealed to date but superseded by subsequent regulations, which established:
…”7. The works manager may order detailed changes that do not lead to an increase or decrease in the contractual amount, communicating them in advance to the RUP.”….
Also in this case, without specifying the percentage limits on the categories, the requirement that remains immutable is:

• the detailed changes, ordered by the works manager, must not lead to an increase or decrease in the overall contractual amount.

The detailed changes in Legislative Decree 36/2023

In the code currently in force, detailed changes are regulated in the following points:

1. Article 1, paragraph 2, letter q) of Annex II.14 to Legislative Decree 36/2023
   …“ q) provide the RUP with the investigative and consultative assistance necessary for the assessments aimed at adopting contractual modifications, variations and variants, without prejudice to the possibility of making detailed changes that do not lead to an increase or decrease in the contractual amount, communicating them in advance to the RUP;”…
2. Article 5, paragraph 9, of annex II.14 to Legislative Decree 36/2023
   …” 9. The works manager may order detailed changes that do not lead to an increase or decrease in the contractual amount, communicating them in advance to the RUP.”…
3. Article 21, paragraph 1, of Annex II.18 (cultural heritage area) to Legislative Decree 36/2023
   …” 1. Interventions ordered by the director of works to resolve detailed aspects, aimed at preventing and reducing the dangers of damage or deterioration of the protected assets, which do not qualitatively modify the work and which do not lead to an increase or decrease of more than 20 percent in the value of each individual processing category, within the limit of 10 percent of the overall contractual amount, if there is financial availability in the economic framework among the sums available to the contracting authority, are not considered variations during construction.”…

The text of Article 21, paragraph 1 of Annex II.18 slavishly repeats what is indicated in Article 149, paragraph 1 of Legislative Decree 50/2016, leaving the problem of the regulatory compliance of the operational limit of the works manager with respect to the detailed changes completely unresolved and determining an interpretation, unfortunately supported by a drafting of the prescription oriented towards the increase in the contractual amount established by the same Legislative Decree.

The main elements of conformity of the detailed changes are shown in the following diagram:

For a precise identification of the substantial changes, the provisions of article 120, paragraph 6 of Legislative Decree 36/2023 are reported:
…” 6. The modification is considered substantial when it significantly alters the structure of the contract or framework agreement and the underlying economic operation. In any case, without prejudice to paragraphs 1 and 3, a modification is considered substantial if one or more of the following conditions occur:

• (a) the amendment introduces conditions which, if they had been contained in the initial procurement procedure, would have allowed the admission of candidates other than those initially selected or the acceptance of a different offer than the one initially accepted, or would have attracted additional participants in the procurement procedure;
• b) the modification changes the economic balance of the contract or framework agreement in favor of the successful tenderer in a way not foreseen in the initial contract;
• c) the modification significantly extends the scope of the contract;
• d) a new contractor replaces the one to whom the contracting authority had initially awarded the contract in cases other than those provided for in paragraph 1, letter d).”