Italian Government approved the so-called decree-law “Semplificazioni”, containing urgent measures for the simplification of procedures and digital innovation. The decree-law, which has 65 articles, was published in the Official Journal no. 76 of 16th July 2020.
The text is an organic intervention mainly aimed at (i) simplifying administrative proceedings and public procedures; (ii) reducing and speeding up bureaucracy; (iii) digitizing the Public Administration; (iv) supporting the green economy and business activity.
Among the measures adopted, particular attention should be paid, on one hand, to the rules on public contracts and the implementation of major works considered to be priorities and which, in part, will be entrusted to Commissioners and, on the other hand, to the digitalization of the Public Administration.
In particular, in order to encourage investment in the infrastructure and services sector, a new framework for the awarding of works, services and supplies is introduced on a transitional basis (rectius, until 31 July 2021).
More specifically, articles 1 and 2 of the legislative decree provide for exceptions to the public contracts code and precise time limits for the conclusion of public procedures. The non-compliance with these deadlines, the delays in the stipulation of the contract and those in the start of its execution may be evaluated for the purposes of the liability of the R.U.P. for pecuniary damages or, where attributable to the economic operator, will be considered a cause of exclusion from the procedure or termination of the contract. Moreover, it is expected that the pending judicial proceedings will not constitute an adequate justification for the failure to conclude the contract within the time limit laid down and, for works of national importance and above the european thresholds, suspensions in execution may be determined by the parties or the judicial authorities only in well-specified cases.
With specific regard to procedures for contracts below the thresholds set out in art. 35 of Legislative Decree 50/2016 (i.e. the Public Contracts Code), the new rules provide for the use of the:
- Direct awarding, for works, services or supplies of less than €150,000;
- Negotiated procedure without prior publication of the notice, after consultation with a variable number of operators based on the total amount, for works, services or supplies of an amount equal to or greater than €150,000 and below the thresholds of european relevance.
With regard to the award procedures for contracts exceeding the thresholds of european relevance, article 2, par. 3, of the legislative decree introduces provisions derogating from the Public Contracts Code by allowing the possibility of using a negotiated procedure without prior publication of the notice when for reasons of extreme urgency arising from the negative effects of the crisis caused by the COVID-19 pandemic or the containment measures taken to deal with it, the deadlines, even shortened ones, provided for in the ordinary procedures cannot be respected.
The use of this procedure may relate, in particular, to interventions in the school building, health and prison, transport and road, rail and water infrastructure, as well as interventions necessary for the implementation of the energy transition and what is related or predetermined for this purpose. In this perspective, a series of works of national importance that will benefit from these procedural advantages should be identified by means of DPCM, since there is no mention in the legislative decree for their precise identification.
In order to avoid interruptions or suspensions of the works for the realization of public works as identified above, a fund, identified as the Fund for the continuation of public works, is provided for in art. 7 of the legislative decree. The need is to avoid that the temporary lack of resources (pending the disbursement of funding or for other reasons) may constitute an obstacle to the timely execution of public works.
The suspension, voluntary or forced, of the execution of works aimed at carrying out public infrastructures of an amount equal to or greater than the thresholds of european relevance, can only take place for the time strictly necessary to exceed them and only where there is (i) the occurrence of a cause provided for by criminal law, (ii) serious reasons of public order, public health or those involved in the execution of the works, including the measures adopted to counteract the global health emergency by COVID-19, (iii) serious technical reasons, (iv) serious reasons of public interest.
To consult the full text of the Simplifications decree-law, please refer to the following link: https://www.gazzettaufficiale.it/atto/stampa/serie_generale/originario