Public works and delivery of works: comparison between Legislative Decree 36/23 and the immediately preceding legislation


Emma Potter

Delivery of works: the four types

Work delivery can be divided into four cases:

  • ordinary delivery,
  • delivery urgently, early, or under legal reservations;
  • total delivery;
  • partial shipment.

Cases 1 or 2 are possible combine alternately with cases 3 or 4, consequently generating other more complex ones.

But what changed in the transition between Legislative Decree 50/16DM 49/18 and the Legislative Decree 36/23 on this topic? Virtually nothing. In fact, although the regulatory references are necessarily different, the contents of the articles are the same. Let's start with the part of Framework Law which, as in Legislative Decree 50/16he doesn't say much about delivery.

The moment of delivery

L'art. 121as the previous art. 107, paragraph 5fourth period, of Legislative Decree 50/16it's not that he focuses much on delivery, which is more of a topic that is managed by regulatory dictates as we will see immediately afterwards with theAnnex II.14. In fact, the aforementioned article deals with this topic in only one period within the paragraph 9however it immediately expresses three key concepts, namely that the contractual time And:

  • established by the contractual documents;
  • starts from the delivery date and therefore the same day is included in the useful time;
  • in the case of partial delivery, the useful days start from the last of the reports.

In the transition to the regulatory part, which in the Legislative Decree 36/23 is contained in the Attachments and in particular for the management of works and services/supplies in theAnnex II.14a first hint at delivery is located in theart. 1.
L'art. 1we remember, is what sums up all of them a bit obligations to be borne by the works manager. It is a summary dictate that constitutes a excellent handbook to always keep in mind and always in your bag.

The time of deliverybeing initial and central for the work manager's activity, is, rightly, immediately recalled, referring to the next one art. 3 of theAnnex II.14of the Legislative Decree 36/23 regarding the specific and detailed discipline. In comparison with theart. 5 of the DM 49/18, no substantial news emerges.

Duties and responsibilities of the works manager and the RUP

Let's see the main paragraphs ofart. 5 of the DM 49/18.

The paragraph 1 defines the time within which the delivery of the works must be drawn up and specifies three cases but certainly the most ordinary and widespread is the third “the forty-five day period starts from the date of signature of the contract”.

The construction manager makes the delivery “subject to provision of the RUP”. This note is important as the works manager does not independently arrange for the delivery of the works but must be authorized by the RUP who pulls the strings of the entire public works process from planning to design to execution. The paragraph 2 establishes, it would be better to say reiterates, what the project manager should dowho is responsible for task of making the delivery.
The spirit of the rule is evident which requires that the same be carried out in cross-examination as subsequently also taken up in the paragraph 8 but not only.

We highlight the following points:

  • communicates with adequate notice to the executor”;
  • “equipped with suitable personnel, as well as the equipment and materials necessary to carry out, where necessary, the tracing of the works according to the plans, profiles and project drawings”;
  • the director of works and the executor sign the relevant report”;
  • the deadline for completing the works begins from this date”;
  • The works manager sends the delivery report signed by the parties to the RUP”.

For delivery purposes the presence of operational managers and site inspectors is not regulated.
Furthermore, it is not certain that they were nominated, as the works management office, understood as personnel assisting the works director, is not always established, it depends greatly on the size of the construction site, as well as unfortunately on the economic resources available. To the paragraph 3 the case in which the contractor is also taken into consideration does not show up on the day set for delivery.
In this case the contracting authority has two options:

  • terminate the contract and forfeit the deposit;
  • set a new date for delivery, it being understood that the contractual times start from the first established date.

The paragraph 4 it is important because it explains a particular condition or the delay in delivery due to the contracting authority.
In this case the contractor has the right to request the withdrawal from the contract and also to the reimbursement of expenses already incurred, with the limits indicated in paragraphs 12 and 13.
It is clear that, if the request is not accepted, the contractor can take a reserve action as revealed at the end of the period “has the right to compensation for the increased costs resulting from the delay, the calculation methods of which are established in paragraph 14.”. The paragraph 5 However, it leaves the contracting authority with a further possibility: disciplinary in the specifications in which cases it may not accept the request withdrawal of the contractor.

The paragraph 6 also provides a temporary suspension period on the contracting station side with the time limit of 60 days, clearly for reasons other than force majeure. Over 60 days. you can proceed with the withdrawal request where permitted.

In the cases seen above ai paragraphs 4, 5 and 6 there is theobligation by the contracting authority and in particular the RUP to communicate to the Authority (paragraph 7).

The paragraph 8 and the next paragraph 10 they sanction important administrative responsibilities borne by the works manager which cannot be limited to carrying out the delivery without verifying that the surrounding conditions comply with the project and therefore that the work can be carried out or can be built.

Urgent and early delivery

The paragraph 9of theart. 5 of the DM 49/18tells us instead about partial shipment and to the last period of emergency delivery.

Delivery can be made either on time “total”that is, the entire area where the works are to be carried out is made available to the contractor immediately and then the contractual time starts from the day of the same, or it can be “partial”. In this case, more delivery reports are drawn up “partial” and the contractual time starts from the last report issued.
The rule states: “The director of works provides for partial shipment of the works in the event that the special tender specifications provide for it in relation to the nature of the works to be carried out or in cases of temporary unavailability of areas and properties.”

Here is a point of novelty not so much compared to DM 49/18 as for the previous legislation which established that partial delivery could only be carried out if foreseen in the specifications, this first condition has now remained but is no longer exclusive.

The topic of emergency and early delivery, or under legal reservations, is also set out in the part of the framework law in the articles: 17, paragraph 8, of Legislative Decree 36/23 And 50, paragraph 6, of Legislative Decree 36/23. Then the execution of the contract can be started before the stipulation of the contract or for justified reasons or for urgency. Early delivery can take place today only after verification of the requirements.

Big differences compared to the project

Always in reference to the art. art. 5 of the DM 49/18The paragraph 10 it is essential because, if the works manager detects upon delivery of the big differences with respect to the project, the same must absolutely be exempted from carrying out the same, under penalty of incurring serious administrative and tax liabilities.

THE paragraphs 11, 12, 13, 14 and 15 they still regulate the delay conditions, withdrawal and refundas well as takeover of one executor by another.

What changes in services and supplies?

In reference to theArt. 31, paragraph 2, letter c)of theAnnex II.14of the Legislative Decree 36/23 apart from the fact that the rule reports, I believe erroneously, the figure of the works manager, in comparison with the D,M. 49/18 no significant news emerges.

The paragraph 2, letter c)therefore it resumes what the enforcement director should dowho is responsible for carrying out the delivery, subject to the instructions of the RUP.
The norm always at paragraph 2, letter c), reads: “after the contract has become effective”, not specifying a term as done for the works; the same already defined can be considered appropriate unless regulations or notices regulate otherwise.

Unlike jobs (art. 3, paragraph 2, of Annex II.14, of Legislative Decree 36/23) it is not expected explicitly also for services and supplies a moment of “communication well in advance”, although in my opinion the procedure must be the same. Even in this case, however, the spirit of the rule which requires that the delivery of services and supplies be carried out jointly is evident.

In the case of works (art. 3, paragraph 3, of Annex II.14, of Legislative Decree 36/23) the rule itself also provides for the possibility in which thecontractor not present at the delivery, for services and supplies this point is not made explicit; even if the concept remains valid “as applicable”.

Unlike the jobs (art. 3, paragraph 2, of Annex II.14, of Legislative Decree 36/23) it is not expected also explicitly a moment of “transmission of the report to the RUP”although in my opinion the procedure must be the same.

There most important news focuses on the fact that it is also made explicit for the services that the start-up report collects the contractor's complaints.

Delivery can be carried out early and urgently, in the second case, when the director of execution must acknowledge in the report what has been prepared and administered by the contractor and must indicate to him the activities that must be carried out immediately. There partial shipment for services and supplies is not regulated by law even if in my opinion it cannot be excluded a priori.