Article 120, paragraph 7 of Legislative Decree 36/2023 defines the changes to the project that are not considered substantial and frames them with the following prescriptions:
… “The modifications to the project proposed by the contracting authority or by the contractor with the such as, in compliance with the functionality of the work:
a) savings are ensured, compared to initial forecasts, to be used as compensation to deal with increasing variations in processing costs;
b) equivalent or improved solutions are created in economic, technical terms or in terms of completion times of the work.”
The provisions of letters a), b) and c) of paragraph 6 of the same article 120 which define the substantial changes are related to:
a) the amendment introduces conditions which, if they had been contained in the initial procurement procedure, would have allowed different candidates to be admitted from those initially selected or to accept a different offer from the one initially accepted, or they would have attracted further participants in the procurement procedure;
b) the modification the economic equilibrium of the contract changes or of the framework agreement in favor of the successful tenderer in a way not foreseen in the initial contract;
c) the modification it extends the scope significantly of application of the contract.
This means that when we are not in any of the conditions just listed it is possible to intervene, without changing the levels of functionality of the work, with non-substantial modifications for which there are no economic limits (article 120, paragraph 5 of the Legislative Decree . 36/2023).
The economic limits of variations
This apparent absence of economic limitsin reality, is based on the mandatory assumption that we are talking about changes that would always be carried out within the availability of the established financing and therefore, the economic scope of this type of changes is conditioned, if they constitute additional expenditure, on the availability of the existing economic framework.
That of economic framework it’s a insurmountable limit therefore it will be possible to implement the improvement interventions (if not proposed free of charge by the executor at the time of the offer) only within the availability, in particular, deriving from unforeseen events, from the economies relating to auction reductions and from changes in the categories of work envisaged without increasing the contractual amount.
In practice it is about project changesin the execution phase of the intervention, which, without altering the substantial elements of the original project (especially in functional terms) allow the implementation improvement interventions in the three areas recalled:
- economic;
- technician;
- storm;
allowing, with the changes introduced, to pursue some further advantages for the contracting station through a double result: reductions (of costs or times), qualitative improvements of parts of the work.
The proposal for the implementation of these changes may be advanced both by the contracting authority and by the executor of the works following an analysis of the proposals which must be carried out by the Rup to verify full compliance with the relevant regulatory provisions.
Changes to the economic framework
It is useful to analyze the different cases:
- availability resulting from unexpected events: Article 60, paragraph 4, letter a) of Legislative Decree 36/2023 provides that 50% of the availability of the sums set aside for unforeseen events is used for the application of the price revision, it follows that the remaining 50% is intended for unexpected and unpredictable interventions that became necessary during the execution of the works;
- amounts generated by the auction reductions of the various loans (works, technical expenses, services, supplies…): they consist of the total of the tender savings of all the assignments made for the various expenditure items of the economic framework which provide for competitive procedures which produce, on the basis of the economic offers presented by the operators, savings compared to the starting price;
- improvement changes that do not involve an increase in expense: in this case these are improvement changes whose cost increase is absorbed by variations (increasing or decreasing) made within the categories of work envisaged without increasing the original contractual amount;
- use of supplementary coverage: in the case of insufficient availability in the previous cases it is possible to proceed with the expense coverage of the greater costs of the improvement variants by using economic resources deriving from the injection of a portion of the organization’s ordinary funds which it is decided to use due to the importance represented by the processes under consideration.
Conclusions
It is clear that the correct and adequate management of changes can only derive from a few main factors:
- the capacity of Rupassisted by the director of works, to manage the monitoring phase of the project and therefore be able to anticipate and prepare any hypothesis of variation – even if it is an improvement – managing to frame the activity normatively and economically within the practicable tracks;
- the proactive and supportive function of director of works who remains the figure in close contact with the management of the works and therefore also with the executor, thus being able to build the path, alongside the Rup, of framing and implementing the changes to the works consistent with the final objectives;
- the way of sharing and cooperatingexecutor of the works which is not only the implementer of what will be approved by the contracting authority but also the proposer of any improving solutions offered during the offer or proposed during the execution of the works.
The ability that the figures just listed will have to analyze and build the most appropriate, regulatory compliant and quickly implemented solutions represents the indispensable condition for achieving the desired result.
