15 April 2016 – The Council of Ministers has definitively approved the Legislative Decree on “the new Public Procurement and Concession Contracts Code”, on a proposal of Premier Matteo Renzi and the Minister of Infrastructures and Transport Graziano Delrio.
NEW PUBLIC PROCUREMENT AND CONCESSION CONTRACTS CODE
Implementation of the European Directives on the award of Concessions Contracts on public procurement and public procurement procedures for the reform of the legislation in force on the public contracts for works, services and supplies (Legislative Decree –final examination)
The Council of Ministers, on a proposal of Premier Matteo Renzi and the Minister of Infrastructures and Transport, Graziano Delrio, has definitively approved the Legislative Decree for the implementation of the European Directives 2014/23/EU, 2014/24/EU and 2014/25/EU on the award of Concession Contracts, on public procurement and public procurement procedures of Entities operating in water, energy, transport and postal sectors, as well as reforming the legislation in force on public contracts for works, services and supplies.
Public contracts, concessions and services regulated by a single Legislative Decree
The Code, which confirms the structure of the preliminary text of the last 3 March, formulated on the basis of the Delegated Law of 28 January 2016 No. 11 and approved by both Chambers on 14 January 2016, includes the adoption of the opinions issued by the Council of State, the competent Parliamentary Committees and the Unified Committee. Since it is a provision of the Italian National Law, it does not entail any new or greater charge for the State Budget. The Code provides for transitional provisions in order to facilitate the transition from the old to the New Code for ensuring the legal certainty for contracting authorities and stakeholders concerned.
The Italian Government has transposed into a single act – more than two thousand articles forming the Old Code have been reduced to two hundred articles of the new Act – the public procurement and concessions Directives, reorganizing the current legislation on public contracts on works, services and supplies and concessions contracts, so performing the law delegated powers and transposing the European Directives in the timeframe scheduled and in line with the other European Countries.
A single Law divided into guidelines provided by the National Anti-Corruption Authority (ANAC) and also including a Control Booth.
The new Public Procurement and Concession Contracts Code includes simplification and streamlining criteria, reduction of the rules ensuring compliance with the prohibition of excessive regulatory additions (so-called gold-plating).
The Code shall automatically apply; the adoption of the relevant implementation regulation is not required, as it was in the past, but rather the issuing of general guidelines to be approved by Decree of the Minister of Infrastructures and Transport upon a proposal of the National Anti-Corruption Authority (ANAC) after consulting the Parliamentary Committees. The guidelines, as instrument of soft law, will contribute to ensure transparency, homogeneity and speeding of procedural process, providing harmonized criteria. They will function as general guidelines ensuring a steady and consistent updating of the legislation to the changes in the regulation of the sector. Where administrative implementing decrees have been provided for, which are not of regulatory nature, the temporary validity of certain rules of the Regulation during the transitional period relating accounting has been identified, along with testing and inspections, in order to ensure the immediate application of the new legislation.
The Governance aspect has also been regulated, through strengthening the role played by ANAC (National Anti-corruption Authority) in support of legality, and also the role performed by the High Council of the Ministry of Infrastructures and Transport, as well as the establishment of a control booth under the Presidency of the Council of Ministers, as monitoring and co-ordinating body.
The Code is divided into processes following a clear sequence: starting from the decision to initiate an awarding procedure up to the last stage of the contract fulfilment.
It regulates the planning, programming and designing activities, key stages for the tender station, the procedures for the award of contracts, identifying common basic principles for all types of contract to be followed, such as transparency, cost efficiency, effectiveness, correctness, timing, free competition, non-discrimination, the applicability of collective agreements to the personnel employed on works, services and supplies contracts, the enforceability of Law No. 241/1990, the person responsible for procurement proceedings, the public award procedures control, the energy and environmental sustainability control.
So, procedural rules have been defined for each type of contract such as: procurement, concessions, the so-called “in-house” award, general contractor, forms of public/private partnership, including in this latter the form of project financing, horizontal subsidiarity tools, administrative exchange. Procedural steps are also regulated: European Union threshold’s verification and qualification requirements for the contracting authority, procedures for the award of public service contracts and choice of the contractor, publication of notices, tender selection procedures, award procedure, the fulfilment of the contract, verification and testing procedures.
The Code goes beyond the Objective Law, through the development of infrastructure planning instruments, priority projects and the direct reference to the ordinary procedure’s application. Joint contract awards have been strongly restricted, which are strictly allowed only in exceptional cases such as the project financing or the General Contractor forms. As for administrative cases, the Code introduces a new shorter trial procedure in Council chambers relating the acts of appeal against the reasons of exclusion as well as regulating alternative remedies to judicial protection.
The Quality of the project provided by the contracting authority and operators
The new system is based on the quality of the services offered, also allowing to eliminate the main cause of increasing costs in public works implementation, represented by tenders on preliminary planning.
Three steps of planning stages are envisaged: the new technical and economic feasibility project, the final project and the working project, the last being the object of tender.
The new type of feasibility project will strengthen the technical and economic quality of the project. The planning stage must meet the general needs, the functional, technical architectural design of the project, along with ensuring a restricted use of land, respecting hydrogeological, seismic and forestry constraints and energy efficiency. The new feasibility project will be drawn on the basis of geological and geo-gnostic assessments, preliminary assessment on the archaeological lay out, provided that it must identify the best cost-benefit ratio for the receiving people. A gradual introduction of modelling electronic tools has been foreseen, that may be used in the tenders launched by the most qualified contracting authority.
Sub-contracting will be possible within a maximum threshold not exceeding 30 percent of the contracts’ total amount for public works, services and supplies.
As for the choice of contractor, the criterion of the most economically advantageous tender, based on the best quality-price ratio (which combines the technical and economic tender) and which previously represented only one of the alternatives for tender stations, has become the preferential award criterion, as well a mandatory requirements for the provision of social services and the management of catering services in hospitals, for supporting and school catering services and for those services in which labour input is of key importance in those sectors in which the need to improve the quality or worker protection prevails.
A professional qualification is required both for economic operators - for whom a specific legislative provision is planned also including legality rating - and contracting authorities, based on predefined standards and reward systems which will enable to award the most complex and expensive works and services. The spending review measures will so be strengthened, with only few and qualified contracting authorities.
Provisions in support of legality and strengthening of the National Anti-Corruption Authority’ role (ANAC)
There are many provisions in support of legality, starting from strengthening and reinforcing the role of ANAC (National Anti-Corruption Authority), as supervising authority as well as performing its functions on monitoring, promoting, supporting the exchange of best practices and information between contracting authorities. ANAC has the task of adopting general directives as guidelines, tender models, contract models and other flexible regulation instruments, offering a steady support in the interpretation and application of the Code. The independence of the Awarding Commissions is encouraged choosing their components from a public register held by ANAC. The application of specific rules is also provided for secret contracts or for those ones which need special security measures, in that case the strengthening of the Court of Auditors’ powers is required.
Concession awards have been ruled, global guarantee has been overcome, a single European tender document has been introduced
As requested by European Law, the new Code addresses for the first time ever the concession contracts in an organic manner. A single code is introduced to rule the granting of public works, public supply and public service contracts, making it clear that concessions are contracts of limited duration, distinguished by the fact that the operating risk is really taken by the concession company, in case of a failed economic return from the investment. The Code also foresees that private bodies, that are holders of the public works or public services concessions already existing at the date of the entry into force of the Code and whose concessions were not granted through the project financing form or through a public tender procedure, are obliged to grant at least 80 percent of the contracts with a value higher than EUR 150.000, through a public tender procedure. The already existing concessions will be adapted accordingly within 24 months from the date of the entry into force of the New Code. The verification shall be carried out by ANAC and by the responsible bodies, according to the guidelines provided by ANAC.
The effects of the annulment of the concessions have been clarified along with the economic and financial aspects to be charged to the parties in the event of annulment. The hypothesis of annulment for public interest reasons has also been introduced.
The Code provides for a new regulation of the system of financial guarantees. The previous comprehensive guarantee is abolished and replaced by two different guarantees, simultaneously issued: the good fulfilment guarantee, without any possibility of being repealed and which lasts until the completion of the project and the financial guarantee for the termination of the contract which covers the costs of the new awarding of the contract including all the cases in which the contractor does not fulfil his obligations along with the higher costs charged by the contractor who replaces the previous one.
Among the provisions adopted aiming at encouraging competition, a single European tender document has been introduced, which will immediately ensure European competition and more simplifications for economic operators who will use a single tender document for self-certifying the absence of reasons for the exclusion which will be assessed by the contracting authority.
Transparency and dematerialization by electronic procurement, databases.
The gradual move towards procedures fully managed in a digital way has been planned, with the following reduction of administrative burdens.
With regard to the transparency measures, the use of electronic means in the area of information and communication is foreseen, the full advertising of the preliminary and following stages of the procurement procedures along with the publication of the notices and the invitations to tenders. The Code also foresees the adoption of measures aiming at rationalizing databases which have been reduced to two lists, one of which is managed by ANAC, performing its monitoring and supervision functions and the other one is governed by MIT through assessing the compliance to general requirements for economic operators in order to make them able to respond to the invitation to tender.
Measures on Public-Private Partnership
It is the first time that a Code regulates the public-private partnership model (PPP) considering it as an independent branch as well as a possible form of synergy between private actors and public authorities for the financing, implementation and management of infrastructures and public services, so making it possible for Public Administration to have more financial resources and achieve new and innovative solutions. The operating revenues earned by the economic operator may be obtained from the fees granted by the granting authority, but also from other forms of economic return such as the direct income through the management of the services entrusted to external users. In the public-private partnership “horizontal subsidiarity operations” are included that is, the civil society involvement in the care of public areas or in the upgrading of the unused areas and real estate through cultural initiatives, projects for urban recovery as well as recovery and re-use projects under the general interest. Also the “administrative barter” has been regulated for the implementation of works in public interest with social and cultural aims performed by groups of organized citizens without further costs to be borne by contracting entity.
Projects planning and overcoming of the Objective Law
The Code does not provide for any derogation from the application of the ordinary open public procedures, with the exception of the sectors which are explicitly excluded by the Directive also including high urgency and civil protection cases in which the possibility is foreseen of deciding the immediate carrying out of works or the provision of necessary services to remove the detriment caused to public safety within fixed limits. The limits specified in the new Code amount to 200 thousand Euros or to the amount necessary to remove the damage with a coverage up to 300 thousand Euros for Cultural Heritage and for Civil protection in case of declaration of the state of emergency up to the works threshold.
With the elimination of the use of special procedures, the overcoming of the Objective Law has been foreseen bringing the planning and scheduling of infrastructures and priority settlements for the development of Italy to the ordinary instruments such as the three-year Italian General Plan for Transport and Logistics, and the Multi-Annual Planning Document contained in the Legislative Decree No. 228 of 2011. For the drafting of the first Multi-Annual Planning Document the Minister of Infrastructures and Transport carries out an assessment of all the projects already included in the existing planning and programming instruments, carrying out a project review on them. In order to improve the planning and reprogramming of allocations for infrastructures of key national interest, the establishment of specific funds in the Ministry of Infrastructures and Transport has been envisaged.
The key public projects which may entail a significant environmental and social impact on territories are subject to a mandatory public debate procedure. The criteria for the identification of the projects concerned and the deadlines for the administrative procedures up to their conclusion, will be fixed by decree of the President of the Council of Ministers on a proposal from the Minister of Infrastructures and Transport, after the advice of the Minister of the Environment, Land and Sea and the Minister of Cultural Heritage and Activities, prior the advice issued by the relevant Parliamentary Committees.
Review of the General Contractor and Register of Project Managers and Project Testers
The setting up of the general contractor has been substantially reviewed. In order to appoint a general contractor, the contracting authority will have to provide sound reasons based on the complexity, quality, safety and profitability of the project. The General Contractor model has been forbidden to perform the role of project manager. The possibility of using restricted procedures has been eliminated and the call for tenders will be based on final projects and not preliminary ones.
Also the qualification system has been changed, which is now undertaken by ANAC. An appropriate national register has been set up in the Ministry of Infrastructures and Transport on which the subjects who can hold the positions of Project Managers and Project Testers in the public procurements which are awarded through the general contractor form must be registered. Their appointment in procurement procedures is decided by public lot from a list of candidates proposed to the contracting Authorities, whose number is at least three times the number necessary for each position. The Ministry of Infrastructures and Transport will manage the procedures for the inclusion and registration on the national register as well as those related to appointment. Different professional profiles are excluded from being appointed as project testers, among which are included those performing monitoring, auditing and control activities and other tasks related to the contract to be tested.
Reduction of administrative cases
In order to guarantee the effectiveness and the speeding of the procurement procedures as well as ensuring binding timeframes in contracts fulfilment, a new special procedure is introduced by the Regional Administrative Court to be adopted in closed session. In particular it is established that procedural errors made in the composition of tenders’ Committee, as well as those related to the exclusion from the tendering procedures due to the shortage of the personal, economic/financial and technical/professional requirements, are to be considered immediately prejudicial and may be appealed to the Regional Administrative Court within 30 days from the date of publication of the Commission’s composition or from the date of the publication of the lists of candidates who have been excluded or admitted. Not appealing against these provisions hinders the right to raise an objection of illegality for the following acts of the tender procedures also including the incidental appeal.
Alternative remedies to judicial protection are also foreseen, such as friendly agreement, (also extended to the claims for works and service contracts, removing the appeal to the Commission and providing for the conclusion within 45 days), arbitration (providing only for the appeal to the administered arbitration as well as the establishment of a Chamber of Arbitration which regulates and holds the register of arbitrators and secretaries, drawing up the Code of Ethics for the Arbitration Camera), agreement (in case it is not possible to find other alternatives). Other solutions are also included as the advisory technical board (with non-binding assistance functions in order to achieve, during the fulfilment stage, a fast solution of legal disputes) and pre-litigation advice issued by ANAC (where ANAC provides advice on issues arisen during the tender process upon request of the contracting authority or by one of the parties concerned). The above mentioned advice is binding and in case of no fulfilment the contracting authority is charged with an administrative fine ranging from 250 to EUR 25,000 which shall be paid by the responsible manager.