In this regard, it is useful to remember that article 215 of Legislative Decree 36/2023, in its first paragraph, establishes that:
- the function of the panel is aimed at preventing controversies or technical disputes of any nature, allowing their rapid resolution;
- the formation of the board must be arranged in such a way as to guarantee independence of judgment and evaluation;
- the establishment of the panel is mandatory for public works (including those carried out through concession contracts or public-private partnerships) of amounts exceeding the thresholds of European relevance.
First consideration: the obligation to set up the board for services and supplies, which in the previous code was set at 1 million euros, no longer exists, even if the option remains (governed by article 218 of the code which assigns this choice to the contracting authority both for the works and for the services and supplies).
The functions of the technical advisory body
As regards the tasks and functions, it is necessary to consider that in the Ministerial Decree of 17 January 2022 (guidelines for the functions of the technical advisory board still in force) point 3.1.1 specifies that: “The CCT has a preventive function of resolving all controversies and disputes that may slow down or compromise the implementation process of the public work or in any case influence the regular execution of the works, including those that may generate or have generated reservations.”
These elements, further expressed also in articles 215, paragraph 1 and 216, paragraph 1 of Legislative Decree 36/2023 (as amended by Legislative Decree 209/2024) and which concern the scope of competence of the panel thus defined, are prescribed:
- “To prevent disputes or allow the rapid resolution of the same or of technical disputes of any nature that may arise in the execution of contracts…..” (art. 215, paragraph 1 of the code);
- “In cases of registration of reservations, variant proposals and in relation to any other technical dispute or controversy that arises during the execution of a works contract for an amount equal to or greater than the thresholds of European relevance, the acquisition of the opinion or, upon mutual request of the parties, of a determination of the panel is mandatory. If the parties also agree that the determinations of the panel take on the nature of a contractual award pursuant to article 808-ter of the Code of Civil Procedure, it is precluded the feasibility of an amicable agreement for the decision on reserves.” (art. 216, paragraph 1 of the code).
Without prejudice to the breadth of the scope which continues to include the activity aimed at resolving disputes and technical disputes of all kinds (as already reported in article 207 of Legislative Decree 50/2016 and in Article 6 of Law 120/2020 and in point 3.2.1 of Ministerial Decree 17/1/2022), Article 216, paragraph 1 of Legislative Decree. 36/2023, as amended by article 63 of Legislative Decree 209/2024, further specifies the obligatory nature of obtaining the opinion, or a determination of the panel (requested in agreement by the parties) regarding reservations, variant proposals (new entry) and all controversies or technical disputes of any nature even in the case of optional establishment of the panel.
In addition to these provisions, it is also necessary to consider the one included in paragraph 2 of article 216 of the code (again from article 63 of Legislative Decree 209/2024) and which prescribes the mandatory acquisition of the opinion of the board even in cases of contractual termination.
Below the community threshold for works and for all interventions relating to services and supplies, the contracting authorities remain, in any case, entitled to establish, pursuant to Article 218 of Legislative Decree 36/2023 and according to the methods set out in Annex V.2, a technical consultative panel, made up of three members, to resolve technical or legal problems of any nature which are likely to arise even in the phase prior to the execution of the contract, including the determination of the characteristics of the works and the other clauses and conditions of the notice or invitation, as well as verification of possession of the participation requirements and the selection and award criteria.
These aspects constitute additional areas compared to what is already defined by articles 215 and 216 of Legislative Decree 36/2023 which, by procedural analogy, would also be applicable to the tasks of the panels mandatorily appointed for amounts above the community threshold of the works.
Conclusions
In application of the primary purpose of the technical advisory board, which remains that also prescribed by article 215, paragraph 1 of Legislative Decree 36/2023 and which refers to “prevent disputes or allow the rapid resolution of the same or of technical disputes of any nature that may arise in the execution of contracts …”. The aforementioned regulatory framework assigns to the functions of the college the scope of competence and intervention of its activity which must refer to all disputes or technical disputes of any nature, defining an operational perimeter which does not exclude any area which may arise during the execution of the works and defines a specific purpose which is to “… prevent disputes or allow for their rapid resolution ….”an objective necessarily aimed at all possible conditions, without any limitation, that may occur during the execution of the works.
Precisely in the primary aim of eliminating, with the help of the board, all impediments that may delay or prevent the correct and fluid execution of the works lies the confirmation of the all-inclusive nature of the mandate assigned to this body which is, therefore, called upon to respond, with opinions or decisions, to questions posed on the various aspects of the contract regarding possible controversies or technical disputes of any nature.
