A promise to cut the times of the works between six months and a year. Tenders effectively excluded for the vast majority of public contracts, with direct awards up to high thresholds. Here are the central points of the new Procurement Code fired by the government on Tuesday evening.
Direct assignments and tenders
The code provides for the so-called sub-threshold liberalization: for contracts up to 5.3 million there may be direct assignments. In particular, up to 150 thousand euros is proceeded with direct assignment, then up to 1 million the negotiated procedure without tender inviting 5 companies, a number that rises to 10 for works below the EU threshold of 5.38 million. The actual tender remains a residual possibility for this last group of works, even if there should no longer be a request in the text for an “adequate motivation” to launch it (which would have been an even greater disincentive). According to an estimate by Sole24Ore on Anac data, in these conditions 98% of the works can be assigned without tender for a value of around 19 billion.
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More freedom for mayors
For works of up to half a million, small municipalities can proceed directly without going through the qualified contracting authorities. For the MITs it is a “significant time cut especially for those small municipalities that have to carry out minor works that are so important for the livability of the places and the well-being of their communities”. For large municipalities and unions, regional or provincial capitals and metropolitan cities it is expected that they are automatically qualified contracting stations, with an annual verification in some cases. Serious negligence excluded for officials and managers of public bodies if they have acted on the basis of jurisprudence or the opinions of the authority.
Priority works
To speed up planning, the Government, in concert with the Regions, qualifies an infrastructure as strategic and of pre-eminent national interest and the list of these works is included in the economics and finance document (Mef). The reduction of the terms for planning is also envisaged, as well as the establishment by the Superior Council of Public Works of a special committee expressly dedicated to examining such projects.
Italy first
Upon approval of the Code, MIT announced that it also contains a rule defined as “Italy first”, explaining that it is a “made in Italy safeguard” clause which provides for reward criteria for the percentage value of products originating in Italy or in EU countries compared to the total supplies necessary to execute the contract: “A protection for Italian and European supplies from unfair competition from third countries”.
Integrated procurement and cascade subcontracting
The text explains that “design in the field of public works is divided into two levels of successive technical insights: the technical-economic feasibility project and the executive project”. So the integrated contract is back in the field, which had been expunged from the previous Code, only to find various exceptions. Basically, the contracting authorities will be able to entrust the contract to a single operator with the object of both the executive planning and the execution of the works, on the basis of an approved technical-economic feasibility project. Furthermore, summarizes the MIT itself, to guarantee the conclusion of the works, it will also be possible to proceed with the so-called cascade subcontracting, without limits.
Professional tort
The passage on the professional offense which involves the exclusion of an economic operator from public works was discussed. It occurs when there are “sufficient elements to integrate the serious professional misconduct”; the “suitability of the serious professional offense to affect the reliability and integrity of the operator”; and “adequate means of proof”. The text lists the cases in which the offense can be “inferred” and this has attracted criticism on the fact that there was excessive arbitrariness in the exclusion entrusted to the contracting authorities. The conditions are specified in the Code, from Antitrust sanctions to attempts to unduly influence the decision of the contracting station, from defaults towards subcontractors to a series of crimes such as bankruptcy or urban planning. MIT points out that “for some types of crime, the professional offense can only be invoked following a final conviction, first-degree conviction or in the presence of precautionary measures”.
Digitization
For the dicastery it becomes “a real engine for modernizing the entire public procurement system and the entire procurement life cycle. The pillar of this process lies in the national public procurement database (which belongs to the Anac)”. This will be operational from 2024 and will be a sort of register of economic operators, even with possible reasons for exclusion: the economic operator’s virtual file. Also envisaged are “digital procurement platforms, the use of automated procedures in the life cycle of public contracts. In addition, an integral digitization is achieved in terms of access to the documents that all citizens can request”.
Procurement prices
With regard to tender quotations, the obligation to insert price revision clauses in the event of a cost variation exceeding the 5 per cent threshold is confirmed, with the recognition in favor of the company of 80 per cent of the higher cost. To determine the variation of costs and prices, the Istat indices are used, including those of consumer and production prices and the hourly contractual wage indices. Finally, the new code also provides for the reorganization of Anac’s responsibilities with a strengthening of the supervisory and sanctioning functions.