The observations received from various quarters but above all the significant shortcomings or inadequate instructions contained in the new code 36/2023 and the related annexes, have made it necessary to first corrective action of the text which must then be followed by the resolution of Implementing regulation which is currently postponed to the 38 Annexes and their repeal (towards 38 regulations or towards a single regulation already circulating in draft form?).
In fact, the necessary and urgent interventions currently requested from the Legislative Decree 36/2023 are attributable to few recurring elements:
- construction of one overall vision of the purposes of the law and coherent declination of the regulatory structure;
- simplification of the procedures;
- make the finalization understandable of all processes and the consequent definition of authorization paths;
- clear definition of existing and missing procedures in the text;
- rewriting or substantial changes to some annexesthe result of an uncritical transfer of sectoral regulations that are inadequate when not outdated and originating from ministerial decrees that are obsolete if not already repealed.
As regards the most important issue consisting of the need to create a regulatory framework characterized by:
- an overall and integrated vision of the various areas regulated by the law;
- a logical continuity in the definition of processes made easily understandable by a simplification of the provisions;
- unequivocal clarity of the prescriptions;
The path of the corrective
There law 21 June 2022, n. 78 (delegation law)following the issuing of the European Directives, gave the Government the task of issue within 6 months subsequent legislative decrees necessary to regulate the public contracting sector. The legislative decree 36/2023public contracts code, was approved on 31 March 2023 with effect from 1 July 2023. The aforementioned law also provided for the Government’s right, within two years following the date of entry into force of the legislative decrees, the Government can make corrections and additions made necessary by the practical application in compliance with the same principles and directive criteria of the same law (article 1, paragraph 4 of law 78/2022).
After the closing of the thematic tables with the stakeholders, which took place on 24 September 2024 at the MIT, the next steps are:
- transmission of a draft legislative decree for preliminary examination by the Council of Ministers;
- subsequent opinion of the Council of State;
- opinion of the Joint Conference;
- opinion of the Chambers.
All this should happen by 31 December 2024 with the consequent approval; In the meantime, obviously, the full validity of the regulations currently in force and referred to remains in force Legislative Decree 36/2023.
The main changes in progress
The themes of synthesis on which the corrective is being oriented are indicated in the following diagram (Fig.1).
Based on problems and critical issues the areas that should be the subject of emerged during the consultation integrations I am:
- the levels hey contents of planning in the field of public works (article 41 of the code);
- requests for changes to Book IV, Part II, Title IV relating to project finance (articles 193, 194 and 195 of the code);
- the special order requirements (professional suitability, economic and financial capacity, technical and professional skills) for the participation of operators in public contract tenders (article 100 of the code);
- the application of the rules of law 49/2023 (Provisions regarding fair compensation of professional services) in the context of public contracts;
- intervene on the rules of subcontracting to better clarify the terms and methods of subcontracting and the possibilities of activating sub-contracts (article 119 of the code);
- additions to the discipline of price review strengthening the mandatory nature and methods of application in relation to the different types of public contracts (article 60 of the code);
- consequent adjustments of Annexes I.7 (design) And II,12 (qualification system and requirements for those carrying out public works) in line with the additions indicated in the previous points.
Additional areas under evaluation
The topics covered by the proposals (presented to the VII Commission of the Chamber), in addition to those already briefly indicated, concern the following topics:
- simplification of negotiated procedure without tender;
- strengthening of role of the works manager regarding its technical and control function;
- reduction of terms of testing (from 6 to 4 months) for non-significant works;
- changes on the limit of variationson framework agreements and on design competitions (to be carried out in two phases);
- implementation ofintegrated procurement only in cases where the technological element prevails (previous legislation);
- strengthen monitoring of Minimum Environmental Criteria and on sustainability objectives;
- introduction of new methods for evaluating theoffer anomaly;
- update of percentages relating to general expenses;
- construction of criteria for evaluating the most economically advantageous offer aimed at enhancing the quality requirements by re-indicating the weight of the price component.
Conclusions
As already indicated in the initial part of this note, the changes identified and those under evaluation are limited to addressing individual vertical aspects of some articles without intervening on a more general vision. Since this is a corrective, perhaps we couldn’t expect a different path but remains unsolved the basic problem which is constituted by the fact that the Italian rules implementing the European Directives on public contracts are unable to become a simple, concise and effective tool which allows operators to have references and certainties that do not require regulatory and jurisprudential investigations to understand the possible applicable interpretations.
The more time one is forced to dedicate to understanding the regulations, the less attention will be paid to the quality of the interventions, with a certain increase, moreover, in the implementation time of the projects.
It shouldn’t be difficult, based on basic monitoring of the average implementation times in Italy (we’re talking about 10-12 years for projects even worth 5-6 million euros) of the works and it should be even less complicated to understand what the general points are critical issues that generated this condition.
All this presupposes, however, some unavoidable conditions:
- knowledge, competence and successful experiences in the sector in question, from planning (totally absent) to execution of the works;
- vision of the key issues and ability to identify the provisions to be developed and made understandable to everyone at first reading;
- the profound assimilation of the culture of the importance that public affairs are finally managed in the best interest.
