The Italian Government has approved the conversion law of the so-called ‘Decreto Semplificazioni’ containing urgent measures for simplification and digital innovation. The Conversion Law (Law no. 120/2020) was published in the Official Journal on 14th September 2020.
The innovations introduced by the Decree are many and affect strategic issues such as construction, procurement and public procedures, administrative proceedings, green economy and business activity.
Referred to public procurement sector, the aim is to simplify and speed up the procedures for the award of contracts for supplies, services and works and to encourage investment in infrastructure introducing emergency procedures and clarifying when the sanitary and economic emergency situation can justify the special regime introduced.
Among the measures adopted, a new framework for the awarding of works, services and supplies is introduced on a transitional basis (rectius, until 31 December 2021). The new framework, aimed at speeding up the conclusion of award procedures, derogates from some provisions of the Legislative Decree no. 50/2016 (i.e. “Public Contracts Code”).
More specifically, rt. 1 provides for the exception of some provisions set out in Art. 36, para. 2, of Contracts Code, with regard to contracts below the thresholds of European relevance.
The new rules provide for the use of the:
- Direct awarding, for works of less than 150.000€ and for services and supplies of less than 75.000€;
- Negotiated procedure without prior publication of the notice, after consultation with a variable number of operators (between 5 and 15, based on the total amount), for works, services or supplies of an amount below the European thresholds. With regard to these procedures, the contracting authorities must give evidence through the publication of a notice on their institutional sites.
Also, the article states that the award or final identification of the contractor must take place within 2 months (or 4 months in the case of a negotiated procedure without a notice) of the tender notice that initiated the procedure. 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.
Likewise, a special regime is also introduced for the award procedures for contracts exceeding the thresholds of European relevance. In particular, Art. 2, provides for the use of the:
- Open procedure (Art. 27 of the Directive 2014/24/EU and Art. 60 of the Contracts Code) with the application of reduced terms;
- Restricted procedure (Art. 28 of the Directive 2014/24/EU and Art. 61 of the Contracts Code) with the application of reduced terms;
- Competitive procedure with negotiation (Art. 29 of the Directive 2014/24/EU and Art. 62 of the Contracts Code) with the application of reduced terms;
- Competitive dialogue (Art. 30 of the Directive 2014/24/EU and Art. 64 of the Contracts Code).
The award or final identification of the contractor must take place within 6 months of the tender notice that initiated the procedure.
The rule also provides that in cases of urgency and in specifically identified sectors (ex multis, school building, health, infrastructure and transport as well as for interventions functional to the implementation of the National Energy and Climate Plan), the contracting authorities could operate in derogation of any provision of law other than criminal law, and in compliance with the provisions of the code of anti-mafia laws and the obligations arising from EU, including Directives 2014/24/EU and 2014/25/EU and the principles set out in Articles 30, 34 and 42 of the Contracts Code (i.e. the principles for the award and execution of contracts and concessions; energy and environmental sustainability criteria; conflict of interest).
Another important news is represented by art. 6 with which the so called Collegio Consultivo Tecnico (Technical Advisory Board) is reintroduced in the Italian framework. The appointment of the Collegio is mandatory, until 31 December 2021, for contracts above the EU thresholds.
The Collegio is made up of 3 members (or 5 in case of complexity) with experience and qualification suitable for the work, among engineers, architects, lawyers and economists with proven experience. The components can also be chosen by the parties.
The tasks entrusted to Collegio are different and of various nature: (i) assistance for the rapid resolution of disputes or technical disputes of any nature likely to arise during the execution of the contract; (ii) expression regarding the hypothesis of suspension of the execution of the public work, (iii) opinion for the resolution of contract law in cases of business crisis, insolvency or similar; (iv) resolution of technical or legal problems of any kind that may arise even in the phase prior to the execution of the contract.
From the provisions analysed, it clearly emerges the legislator's intention to create a regulatory framework capable of encouraging investment, despite the critical period we are experiencing. The provisions, in fact, highlight the greater speed and simplicity of the procedures, in the spirit of simplifying the bureaucratic loads connected to public procurement and to the building and urban planning procedures.
To consult the full text of the Law please see the following links: