Article 120 of Legislative Decree 36/2023 has certainly been the subject of a series of changes which intervened in the following areas:
- a more punctual definition of unpredictable circumstances by the contracting authority (new letter “c” of paragraph 1 as amended by article 42, paragraph 1, letter “a” of Legislative Decree 209/2024);
- an identification of greater detail of the non -substantial changes (New paragraph 7 added by article 42, paragraph 1, letter “B” of the corrective;
- a specification relating to design errors (New paragraph 15-bis added by article 42, paragraph 1, letter “c” of the corrective.
The main additions that the corrective made to article 120 of Legislative Decree 36/2023 regarding the changes of the project and variants during the work are reported below:
Variations and changes of contracts: the conditions
At the current state of the legislation, both considering the provisions of article 120 of Legislative Decree 36/2023 and on the basis of the provisions of article 60 of Legislative Decree 36/2023 in the field of Price reviewcontract contracts can, from 31 December 2024, be modified without a new procedure of entrusting in the following cases:
to) If the changesregardless of their monetary value, have been expected in clear, precise and unequivocal clauses of the tender documents initial, which can also consist of optional clauses and condition that the Structure of the contract remains unchanged; For related contracts to services or supplies stipulated by the aggregate subjects, the provisions of article 1, paragraph 511, of the law of 28 December 2015, n. 208;
b) for the occurrence of additional works, services or suppliesnot foreseen in the initial contract, where a change of the contractor at the same time:
- is impractical for economic or technical reasons;
- It involves significant inconvenience or a substantial increase in costs;
c) as amended by article 42 of Legislative Decree 209/2024 (corrective): for the variants in the course of workto be understood as the necessary changes in the course of execution of the contract due to the following circumstances unpredictablewithout prejudice to the additional cases provided for in the sector legislation:
- The needs deriving from new legislative provisions either regulations or by measures that have occurred by authorities or enter the protection of significant interests;
- The natural events extraordinary and unpredictable e Cases of force majeure which affect the assets subject to the intervention;
- The discoveryunexpected or not predictable with due diligence in the design phase;
- the difficulties of execution deriving from geological, water and similar causes, not predictable by the parties based on the technical-scientific knowledge consolidated at the time of the design.
The role of the works and RUP manager
Letter c) of paragraph 1 of article 120, as already reported, constitutes the first important modification made by the corrective that, compared to the limited specification of the previous version reported by Legislative Decree 36/2023 (which indicated only the new legislative provisions and survered measures of entities or protective authorities of important interests) represents a clearer and clearer list of reducing the rather widespread level of discretion.
In carrying out and implementing the changes or variants, the Manager of the works provides the RUP the aid necessary for the investigations regarding the existence of the conditions prescribed by article 120 of Legislative Decree 36/2023. With reference to the cases indicated by the aforementioned article 120, the works manager describes the factual situation for the purpose of ascertaining by the RUP of his non -attributability to the contracting authority, of his not predictability at the time of the drafting of the project or the delivery of the works and the reasons why variation is necessary.
The works manager will propose to the RUP, which remain more and more the two reference figures, with different roles in the executive phase, the changes, as well as the variants of the contracts in progress and related appraisals of Variant, indicating the reasons in the appropriate report to be sent to RUP itself.
Non -substantial changes
Within the non -substantial changesthe new paragraph 7 of article 120 of Legislative Decree 36/2023, as amended by article 42 of Legislative Decree 209/2024 (corrective) establishes that: are not considered substantialwithout prejudice to the limits deriving from the sums available to the economic framework and the provisions referred to in letters a) b) of paragraph 6 of article 120 of Legislative Decree 36/2023 (definitions of substantial changes), the changes to the project or the contractual changes proposed by the contracting authority or by the executor with which, in compliance with the functionality of the work:
to) make sure you save, compared to the initial forecasts, to be used in compensation to meet the increases in increasing the costs of the processes;
b) Equivalent or improvement solutions are made in economic, technical or times of completion of the work, including the surviving possibility of using materials, components or technologies that are not existing at the time of the design that may determine, without increasing costs, significant improvements in the quality of the work or part of it, or reduction of the times of completion;
c) The interventions imposed by the Manager of the works for the solution of technical issues that emerged in the execution of the works that can be financed with the resources registered in the economic framework of the work.
Paragraph 7 of the previous version of article 120 of Legislative Decree 36/2023, reported only two cases relating to the possible obtainable savings and the fact that they were equivalent or improvement.
Now the new text refersas reported above, also to interventions by the Manager of the works aimed at resolving improvements that find coverage that find coverage in the economic framework and describes, in more detail, the two existing points specifying, above all, the point relating to equivalent solutions thus facilitating their recognition.
The works manager, however, pursuant to article 5, paragraph 4 of Annex II.14 to Legislative Decree 36/2023, responds to the consequences deriving from ordering or left to perform changes or additions to the projectwithout having obtained regular authorization, provided that they do not derive from interventions aimed at avoiding serious damage to people or things or assets subject to legislation on cultural and environmental assets or in any case owned by the contracting stations.
In case of changes to the project not ordered by the works managerthe latter provides the executor with the indications for the restoration in pristino with expenses paid by the executor himself.
In the case referred to in Article 120, paragraph 9, of Legislative Decree 36/2023, the executor cannot assert the right to terminate the contract and the supplementary report is accompanied by a act of submission that the executor is required to sign as a sign of acceptance or motivated dissent. In the event that the contracting authority has variations in decrease in the limit of the fifth of the amount of the contract, it must communicate it to the executor promptly and in any case before reaching the fourth fifth of the contractual amount; In this case, nothing is up to the executor as compensation.
The Quickens
Regarding Prezzari application Remember the modification made by article 14, paragraph 1, letter g), point 3) of the corrective to article 41, paragraph 13, of Legislative Decree 36/2023 and which prescribes that the prepared forests are now “the updated forerunners prepared annually” and that the contracting stations and the granting bodies “… are expressly authorized by the Ministry of Infrastructure and Transport not to apply regional ones …” By identifying the subject (Ministry of Infrastructure and Transport, missing in the previous version of the Code) which authorizes the non -application without indicating its according subject.
The works manager can have Detail changes do not involve increase or decrease of the contractual amount, communicating them in advance to the RUP.
The works manager, by ten days From the proposal of the executor, drawn up in the form of a technical report also accompanied by the elements of economic evaluation, of improvement changes of its exclusive ideation and which involve a decrease in the original amount of the works, transmits the same to the RUP together with its opinion. The subjects aimed at improving the functional aspects, as well as individual technological elements or individual components of the project, which do not involve the reduction of the qualitative and quantitative services established in the project itself and which maintain the time of execution of the works and the safety conditions of the workers can form the subject of proposal.
The improvement variants
The improvement variantsproposals in compliance with the provisions of article 120, paragraph 7, letter “B” of Legislative Decree 36/2023, must not substantially alter the project or the categories of works. The performance of the design duties relating to the variant works is defined by the contracting authority in accordance with the provisions of article 120 of Legislative Decree 36/2023.
Design errors
The carrying out the design tasks relating to the variant works is defined by the contracting authority in accordance with the provisions of article 120 of Legislative Decree 36/2023.
It is a prescription aimed at responding to the many critical issues from design errors; The text of the new paragraph establishes that, without prejudice to the provisions of article 41, paragraph 8-bis (entrusting design levels to external designers and design errors) the contracting stations in contradictory with the designer verifies any errors or omissions of the design that affect the construction of the work and identify executive design solutions in coherence with the principle of the result.
