Design errors: new specifications of the corrective contract

The phases of the design

The design supply chain consists of a series of passages in which various subjects are involved who, before the tender for the execution of the works, are called to fulfill the activities of respective competence which should guarantee the perfect execution of the project to protect any type of impedimental conditions.
Specifically, also imagining that the contracting authority has drafted the demanding framework and the address document to the design, normally the current two levels of the design (technical-economic feasibility project and executive project), are entrusted to external subjects identified with the direct or public reliance procedures provided for by the contract code.

This means that:

• the subject foster of the design in the contractual terms, to the drafting of all the documents planned by supporting the contracting authority also in carrying out theauthorization process with the consequent responsibility provided for this type of job;
• During the drafting of the project or after completion of the executive, a third party with the task of checking the projectwhich assumes significant importance not only for the purposes of protecting the contracting authority that must be able to have a perfectly executable project but also for the applicability of a prescription (already present in the previous Legislative Decree 50/2016) relating to the reserves and which provides (article 210, paragraph 2 of Legislative Decree 36/2023): “The design aspects that have been verified pursuant to article 42 are not reserved (of Legislative Decree 36/2023) “In addition to the further prescription, regarding the structural aspects, provided for by article 42, paragraph 3 of Legislative Decree 36/2023 For the purposes of fulfilling the deposit and authorization obligations (Ainop) for constructions in seismic areas and denunciation of the works at the Civil Engineer Office in cases of punctual verification of these aspects;
• imagining that these activities are acquitted in a careful and punctual way, the RUP, recipient of validationwill be able to play their role by referring to the final verification relationship with one reasonable certainty of being faced with a condition that has generated a complete project in all its parts and with any problems highlighted by the verifier already solved by the designers in charge before the delivery of the final documentation;
• Under these conditions theApproval of the project by the contracting authority becomes a simple formalities based on effective control activities and procedures and sure of future problems;
• the next verification of the project by the works manager (before the execution of the tender for the works) and operators who will participate in the presentation of the offers, will not register observations or disputes for unsuitable aspects.

Unfortunately, this hypothesis, in light of the frequency of the manifestation of criticality, delays and incompleteness in the implementation of the interventions, is one condition that occurs only in a reduced number of cases and which determines, with a recurring frequency, the Loss of many funding.

The corrective and design errors

As anticipated, most of the critical issues that intervene in the implementation of public interventions can be ascribed to design errors so far little considered in the regulatory framework and which constitute a Very high risk factor in the execution of the interventions, constituting theelement that most affects costs and times on the factors.

This situation impacts the procedure especially during the execution of the works, with the assessment of conditions that make it necessary variants in the course of work which, due to their origin linked to design errors, cannot be framed in unexpected and unpredictable situations, which entails a series of critical issues that also determine the definition of the intervention.
A first reflection must be made on unexpected and unpredictable circumstances which have been defined by article 42, paragraph 1, letter “c” of Legislative Decree 209/2024 by modifying article 120, paragraph 1, letter “c” of Legislative Decree 36/2023 and contributing to a Improvement of identification of these cases.

As verifiable in operational practice, probably greater exhaustiveness would have been desirable In the identification of the cases, but in the meantime a first step has been taken.

By postponing to a subsequent step the analysis of the design errors and their motivations, the corrective specified some points which, albeit not solving the problem at the root, allow one management of the procedures that must be observed in the presence of the manifestation of design errors.

• 1) The first step consists of article 41 of Legislative Decree 36/2023 which was integrated by article 14, paragraph 1, letter “F” of Legislative Decree 209/2024 with theInserting the new paragraph 8-bis which provides: “In the event of external assignment of one or more design levels, the design contracts stipulated by the contracting stations and granting bodies provide in clauses expressed the reintegrative services to which the designer is held, the designer to remedy in specific form to errors or omissions in the design that emerged in the executive phase such as to prejudice in whole or in part the realization of the work or its future use. Any pact that excludes or limits the designer’s responsibility for errors or omissions in the design is null … “

Therefore, from 31 December 2024 a contractual clause that establishes the obligation, as a transactive, for the designer, to remedy promptly to errors or omissions projects that may occur in the design phase (verification, validation, approval of the project) to their own charges and expenses without interrupting the execution of the workswithout prejudice to the possibility of starting any actions for compensation by the contracting authority that will be evaluated at a different moment.

A second prescription added by the corrective concerns, similarly, the manifest itself of design errors during the execution of the works; This is the provisions of article 120 of Legislative Decree 36/2023 to which article 44, paragraph 1, letter “c” of Legislative Decree 209/2024 adds paragraph 15-bis which provides for:
“Without prejudice to the provisions of article 41, paragraph 8-bis, the contracting stations verify in contradictory with the designer and the contractor errors or omissions in the executive design that affects, in whole or in part, the realization of the work or its future use and promptly identify executive design solutions consistent with the principle of the result.”
Which constitutes a condition similar to that already examined and envisaged during the design by article 41 of Legislative Decree 36/2023 integrated by the corrective but applied to the construction phase of the works.
Therefore, the procedure that sees the contracting authority, the operator, the designers operationally in identifying design errors and in their solution.