Main regulatory changes
Requirements for participation in tenders (art. 32): the amendment to the Code introduces an extension of the time frame for the technical and economic capacity requirements from 3 to 10 years, implementing the OICE request. Furthermore, among the changes, as an alternative to the turnover, the economic-financial capacity can be demonstrated with insurance coverage equal to 10% of the value of the works.
Fair compensation (art. 14): a mechanism has been defined for fair compensation in tenders of amounts exceeding 140 thousand euros, dividing the tender amount into a fixed quota (65%) and a rebasable quota (35%). For loans below this threshold, the rebatable amount is limited to 20%.
Design and BIM (articles 14 and 78)
The assignment of ordinary maintenance work may take place on the basis of Technical-Economic Feasibility Project (PFTE) regardless of the drafting and approval of the executive project, as an alternative to the omission of the first project level.
The decree introduces new clauses for design contracts for the responsibility of the designer in case of design errors or omissions emerged in the executive phase,
They are also introduced specific provisions on the use of BIMwhich is mandatory from 1 January 2025 for projects with estimated cost estimate of the works – no longer with a tender based amount – of amount exceeding 2 million euros.
Price review and contractual advance
Price revision (articles 23 and 86): the price revision will be activated automatically when certain cost variation thresholds are exceeded. The possibility of adjusting contract prices through agreed inflation indexation mechanisms has been introduced for service and supply contracts only.
Advance price (art. 44): the art. 125 of the Code remains unchanged in the part in which it excludes the application of the advance payment to engineering and architectural service contracts, despite OICE’s requests.
Subcontracting, framework agreements and technical advisory board
Subcontracting (art. 41): a reserve of no less than 20% has been introduced for SMEs on subcontractable services and the obligation to apply the same CCNL as the main contractor in subcontracting contracts, or a different CCNL which guarantees employees the same economic and regulatory protections of that applied by the contractor.
Framework agreements (art. 22): the contracting authorities will have to indicate the percentages of assignment to the various economic operators to guarantee the profitability of the implementation contracts.
Technical advisory board (articles 62 and 94): the changes strengthen the role of the Technical Advisory Board in the early resolution of disputes during the execution of the works.
Testing (articles 40 and 92)
The Legislative Decree 209/2024 makes changes to the testing regime envisaged by the Code, requiring non-public contracting authorities to appoint from one to three testers, with at least one selected from their own personnel or that of other PAs, ensuring that these possess adequate qualification, morality and competence requirements. In case of staff shortages or high technical complexity, contracting authorities must verify the availability of employees from other PAs before outsourcing the task. Furthermore, the tester can make use of a technical-administrative secretariat for preliminary investigation support.
For the compensationthe corrective provides for a proportional division between the members of the testing commission, with a 50% increase for additional members and a 30% increase for the president. There is also a flat-rate reimbursement of expenses equal to 30% of the compensation, which rises to 60% for testing during construction.
