The Council of Ministers has approved decree reforming the Public Procurement Code.
At present, the text has been approved in preliminary examination and the process will entail several steps before it is finally endorsed and published in the Official Gazette.
Public procurement reform under the Meloni government: two main principles
Italy’s Prime Minster Giorgia Meloni presented it as
an organic, balanced and visionary measure, the result of skilled and extensive work, which simplifies procedures and ensures faster timescales. It will also be a driving force behind the relaunch of economic growth and the modernisation of the nation’s infrastructure.
It is, therefore, a measure aimed at streamlining and speeding up the entire system of public procurement, simplifying practices and expediting bureaucracy.
The entire philosophy and vision of the reform can be summarised in two basic principles:
- Result Principle: which prioritises the public interest and proposes measures to facilitate and simplify the process and thus render a smoother and leaner public procurement system, ensuring quality and speed on the one hand, and competition, legality and transparency on the other.
- Trust is another fundamental principle, taking the form of transparency, legitimacy and fairness on the part of the public administration and finance officials.
Public procurement reform under the Meloni government: the role of digitalisation
Digitalisation is undoubtedly a driving force behind the mechanisms of the reform and a core component in coordinating its apparatus.
It is one of the key objectives on the Italian political agenda and its relevance has been highlighted by all the bureaucratic and administrative shortcomings during the Covid 19 pandemic.
The decree attempts to build a “digital procurement ecosystem“, the main components of which are:
- National database of public procurement contracts
- Virtual file of the economic operator
- Use of automated systems for the management of public procurement contracts
- Use of digital procurement platforms;
- Complete digitalisation of all systems to access procedures concerning public procurement contracts
- All citizens are granted the possibility, within the limits dictated by the regulations in force, to access tender documents. They are granted generalised civic access to said documents.
More streamlined procedures
The most interesting provisions of the Meloni decree include:
- An ad hoc plan for what are deemed priority infrastructures will be included in the Economic and Financial Document (DEF), following a discussion between the central government and the regions.
- Reduction and streamlining of project timescales and processes and also the establishment by the Higher Council of Public Works of a special committee to evaluate and examine these projects.
- Parallel evaluation of archaeological interest
- Some contracts will be subject to an executive plan: this will be based on a technical feasibility project submitted and then duly approved. This form of contract excludes all those contracts concerning ordinary maintenance works.
- The thresholds for direct awards and negotiated procedures of the so-called “Covid-19 simplification decree” remain in place.
Other measures envisaged by the Reform
Other measures are being taken to further simplify the public procurement system.
- The figure of the “general contractor” has been reintroduced, with a view to achieving an administrative result by using specific professional and specialist services in exchange for a fee.
- Incentives are envisaged for the participation of institutional investors in project tenders.
- The category of so-called “special sectors” is identified, based on the essential nature of the services provided (energy, water, transport, etc.).
- The reform provides for the lifting of the prohibition on so-called “cascade subcontracting”, (art. 105(19) of Legislative Decree 50/2016, which states “The performance of the services subcontracted cannot be subject to further subcontracting”) – created to stem the infiltration of organised crime – already the subject of debate at EU level in infringement procedure No.
2018/2273 of the European Commission, which threatened sanctions against Italy regarding the non-application of EU procurement regulations. - With regard to awards without tenders, the obligation to contract – except for special sectors – between 50% and 60% of the works is established.
- There is no provision, in the event of the compulsory winding-up of the economic operator following the award of the contract, for the natural expiration of the contract. This, subject to the authorisation of the bankruptcy judge, may be entered into with an administrator authorised to carry on the business.
Disputes
With regard to disputes, ANAC’s (national anti-corruption authority) powers have been enhanced with respect to supervisory and disciplinary functions.
The court may also claim damages against operators who, through unlawful actions, have conspired to distort and mislead the outcome of the tender.
The image is taken from the ANSA agency photo archive, author Claudio Ferri