The partial delivery of the works in public contracts: regulatory evolution

Partial delivery of the works: possible or not? The regulatory framework

The article wants to examine and highlight how it has varied over time, evidently also photographing the current situation, the possibility of activating or not a type of delivery partial. We will face this theme in light of the regulatory evolution starting from Legislative Decree 36/2023 to return back to Presidential Decree 554/1999.

In the analysis we will focus mainly in the works sector, also because it is more disciplined, it being understood that if applicable today it is possible to manage the scope of services and supplies similarly also.

First of all, we frame the regulatory framework of reference as regards the issue of partial deliveries, in the light of the last passages:
Jobs:

Framework part:

Art. 107, paragraph 5, fourth period, of Legislative Decree 50/2016 (procedures already underway on 01/07/2023);
Art. 121, paragraph 9, first period, of Legislative Decree 36/2023.

Regular part:

Art. 5, paragraph 9, first, second, third and penultimate period, of Ministerial Decree 49/2018 (procedures already underway on 01/07/2023);
Art. 3, paragraph 9, first, second, third and penultimate period, of Annex II.14, of Legislative Decree 36/2023.

Services and supplies:

Framework part:

Art. 107, paragraph 7, of Legislative Decree 50/2016 (by analogy with works, where applicable) (procedures already underway on 01/07/2023);
Art. 121, paragraph 11, of Legislative Decree 36/2023 (by analogy with works, where applicable).

Regular part:

– of Ministerial Decree 49/2018 (procedures already underway on 01/07/2023);
Art. 39, of Annex II.14, of Legislative Decree 36/2023.

Let’s now pass to check the regulatory framework after seeing it in summary, highlighting the articles, paragraphs and periods that most interest us in reference to today’s theme and checking the contact points, confirmations and news.

Art. 121, paragraph 9, first period, of Legislative Decree 36/2023 – “Suspension of execution”

“9 …”

Art. 107, paragraph 5, fourth period, of Legislative Decree 50/2016 – “Suspension”

“5 …“

The type delivery partial It is provided as an possibility from the framework of the rule, but only in reference to the punctuation of the contractual time without defining in terms “regulations“, Which we will see later, when you can activate.

Let’s pass now to see the regulatory part of the two rules, which will mainly clarify some aspects of detail regarding the possibility of drawing on a type of delivery partialoutlining some cases.

Art. 3, paragraph 9, of Annex II.14, of Legislative Decree 36/2023 – “Delivery of the works”

“9 In the case of partial delivery resulting from the temporary unavailability of areas and properties, the executor is required to present, under penalty of forfeiture of the possibility of registering reserves for delays, a program for execution of the works that provides for the priority construction of the processes on the available areas and properties. The works envisaged by the program has been created, if the causes of unavailability remain the discipline relating to the suspension of the works. In cases of partial delivery, the date of delivery to all effects is that of the last partial delivery report drawn up by the works manager. When the works manager provides for the urgent delivery, the delivery report also indicates the processing that the executor must immediately perform, including the provisional works.”

Art. 5, paragraph 9, of Ministerial Decree 49/2018 – “Delivery of the works”

In the transition from Ministerial Decree 49/2018 to Legislative Decree 36/2023 there are not actually novelty to report in this regard, so to see what has changed we must go to see the previous legislation, namely Presidential Decree 207/2010 and finally the Presidential Decree 554/1999.

Having said that, let’s start by saying that the above gives us a double option of choice:

“The works manager provides for the partial delivery of the works in the event that the special tender specifications provides for it in relation to the nature of the works to be carried out …“;
“The works manager provides for the partial delivery of the works … in cases of temporary unavailability of areas and properties.“.

Therefore in cases of “temporary unavailability of areas and properties“It is not necessary that there is a chapter forecast, and this is correct as it could be a case not known at the time of the drafting of the project and that it manifests itself in an unexpected or unpredictable way only subsequently, even after the attestation of the manager of the works preparatory to the assignment phase, or finally detected at the time of delivery itself, as the discrepancies of the state of the places compared to the project.

On the other hand, also understand the second case included within the first, or if foreseen in the specifications, it would not be consistent with the lexicon of the standard, which we can read in these terms:

“The works manager provides for the partial delivery of the works in the event that the special tender specifications provides for it in relation … in cases of temporary unavailability of the areas and properties“.”

As you can see, the phrase and syntax and moreover the terms “would not sound well”in case” And “in cases“, They already determine a dual alternative indication. Let’s now go back a little back in time to see if something has changed, and we start from Presidential Decree 207/2010 to finally land at Presidential Decree 554/1999.

Art. 154, paragraphs 6 and 7, of Presidential Decree 207/2010 – “Delivery verbal process”

“6
In case of urgency, the executor begins the work for the only parties already delivered. The date of delivery to all effects is that of the latest partial delivery report.“
7 The works provided for by the program has been created, if the causes of unavailability remain the discipline of article 158.“

In this case the two cases are placed on two distinct paragraphs, but do not appear to be alternative but rather subordinate. Already the chronology of paragraphs gives us back this type of reading, but also semantics, as in paragraph 6 the necessary condition is defined to draw on delivery partial or when “The nature or importance of the works or of the work requires it“And in any case it must be foreseen in the CSA. After which in paragraph 7, we speak of delivery partial In case of “temporary unavailability of areas and properties“, That is, if you return to paragraph 6 for this specific case, then the contractor must make a precise fulfillment.

Art. 130, paragraph 6, of Presidential Decree 554/1999 – “Delivery verbal process”

“6 In case of urgency, the contractor begins the work for the only parties already delivered. The date of delivery to all effects is that of the latest partial delivery report.“

The possible cases are always the same, but this time they both fall under the auspices of the CSA as alternative cases. In fact, we have and we can read:

“The special specifications provides that the delivery of the works can become several times with subsequent partial delivery reports when the nature or importance of the work or work requires it, …“;
“The special specifications provides that the delivery of the works can be done several times with subsequent partial delivery reports when … a temporary unavailability of areas or properties is expected.“.

Therefore, we have witnessed an evolution of the case, which I personally consider today to its best definition, with two alternative possibilities but only an employee from the CSA. We summarize everything with a scheme but this time proceeding in chronological order.

We conclude by saying that art. 121, paragraph 11, of Legislative Decree 36/2023 and art. 39, of Annex II.14, of Legislative Decree 36/2023, then determine the analogy, where applicable, between the world of works and that of services and supplies.