Public contracts code
Public Contracts Code – Legislative Decree 18 April 2016, n. 50 – Text updated with the legislative decree of 19 April 2017, n. 56 until the legislative decree of 12 January 2019, n. 14
The “Public Contracts Code” represents a fundamental pillar in the regulation of the acquisition of goods and services by public administrations. This code, present in many countries, is a complete and detailed legal instrument that establishes the rules and principles to be followed in the management of public contracts.
Before exploring this topic further, it is essential to understand the central role that the “Public Contracts Code” plays in promoting transparency, efficiency and fairness in public procurement.
- Transparency and accountability: The code establishes clear rules to ensure that procurement processes are open to the public and that decisions are made transparently. This helps prevent favoritism and unfair practices.
- Fair competition: The code promotes competition between suppliers, creating a fair environment in which different companies can compete for public contracts. This promotes efficiency and can lead to better offers for public administrations.
- Resource optimization: the code establishes procedures to evaluate and select the best offers based on objective criteria such as price, quality and delivery times. This allows public administrations to obtain maximum value from public funds.
- Sustainability: Many public contract codes include provisions that promote environmental and social sustainability in public projects. This is particularly relevant in an era where sustainability is a global priority.
- Protection of Supplier Rights: The code establishes rules to protect the rights of suppliers, ensuring that they are treated fairly and receive adequate reimbursement for the services provided.
- Penalties for violations: the expected codeand sanctions for violations of the rules, helping to dissuade illicit behaviour.
Within the document, we will examine in more detail the key principles and provisions of the "Code", as well as its impact on the management of public contracts, underlining the importance of respecting the rules and compliance to ensure the correct functioning of the procurement processes. public procurement.
New Procurement Code
Updated on 21/07/2023
Legislative Decree 31/2023 was published in the Official Journal of 36 March 2023.
The new code acontracts was published in the ordinary supplement no. 12 of the Official Gazette no. 77 of 31 March 2023.
Il Legislative Decree 36/2023 which from 2023 April 50 retires Legislative Decree 2016/7 after almost XNUMX years of honorable career (in reality, the entry into force of the new provisions is subject to a transitional period).
One of the focal points of the new code is the digitization of the entire life cycle of the contract.
Even the contracting authorities will have the obligation to migrate to open interoperable platforms (BIM): they will have to adopt methods and tools for digital construction information management for the design and construction of new construction works and for interventions on existing buildings for the amount based on the tender more than 1 million euros.
The obligations for the contracting station are varied: from staff training to the preparation of an appropriate organizational document for BIM management, from the acquisition of a data sharing environment to its appropriate configuration, from the preparation of information specifications to the management offers, etc.
Definitely:
- if you are a technician (engineer, architect, surveyor or expert), use only up-to-date tools that meet your needs;
- if you are one contracting authority, rely on a single interlocutor able to best assist you;
- if you are afirm, uses specially developed Cloud solutions.
Entry into force
The code will apply to all new proceedings from 1 ° April 2023. From 1 ° July 2023 the repeal of Legislative Decree 50/2016 is envisaged and the application of the new regulations also to all proceedings already in progress.
New procurement code and digitisation
Digitization is the fuel for the whole system and for the life cycle of the contract. A real "national digital procurement ecosystem" made up of a series of elements:
- national database public contracts;
- virtual file of the economic operator, just made operational by the National Anti-Corruption Authority (ANAC);
- digital procurement platforms;
- automated procedures in the life cycle of public contracts.
Total digitization also as regards access to documents, in line with the procedures for awarding and executing public contracts.
New procurement code: award procedures
Article 50 of the new procurement code provides for a system of procedures for awarding that is different from the previous system: higher limits for direct assignments and a simplified system.
The following award procedures are envisaged:
Works:
- direct assignment to 150.000 €;
- negotiated procedure without tender, with consultation of 5 economic operators, for works up to 1 million euros;
- negotiated procedure without tender, with consultation of 10 economic operators, for works up to the threshold;
Services and supplies:
- direct assignment to 140.000 €;
- negotiated procedure without tender, with consultation of 5 economic operators, for services/supplies up to the threshold of European significance.
Furthermore, for the assignment of works of an amount equal to or greater than 1 million euros and up to 5,382 million euros, the possibility of proceeding with a public tender without the need for reasons is reserved.
With the entry into force of the new procurement code (July 2023), the BIM methodology will become a consolidated reality in the normal administration of a public procurement. In order not to find yourself unprepared, I advise you to immediately discover the BIM world of the procurement code and fulfill all the obligations that the new legislation imposes.
New procurement code and RUP – what changes
In the new procurement code, the figure of the RUP changes its name with respect to the legislative decree 50/2016: from sole responsible for the procedure becomes sole responsible for the project. He is entrusted with the phases of:
- programming;
- design;
- assignment;
- execution.
What's new in the new text compared to the December 2016 draft lies in the requirements of the RUP which are now defined in theannex I.2.
In the December draft, however, this annex contained indications on the appointment and duties of the sole project manager.
Another novelty concerns the appointment. According to the text approved in the Coniglio dei Ministri, it is up to the contracting stations and granting bodies and not to the head of the organizational unit, as reported in the December draft. It can also be chosen preferably within the contracting station even among employees with fixed-term contract (another change from the December draft).
New procurement code: yes to cascading subcontracting
The novelty regarding subcontracting is introduced by art. 119 of Legislative Decree 36/2023, precisely in paragraph 17. The novelty is that it is possible to resort to the cascade subcontracting, unlike what is indicated in the art. 105 Legislative Decree 50/2016 which specified the prohibition.
What is Cascading Subcontracting? It is the assignment of work under the responsibility of the subcontractor to a third party company. The new procurement code establishes that it is possible to do so at the discretion of the contracting authority.
Design according to the new code: goodbye to the definitive
The new text completely abolishes the intermediate planning level: the planning levels become two:
- technical-economic feasibility project;
- executive project.
Annex I.7 of the Code defines the contents of the two planning levels and establishes the minimum content of the framework of needs and of the planning guidelines document that the contracting authorities and the granting entities must prepare.
Integrated procurement
The possibility of resorting to the integrated tender is foreseen! We speak of an integrated tender when the contract concerns both the design and the execution of the works, i.e. the assignment of the executive design and the execution of the works on the basis of an approved technical-economic feasibility project. The new code allows for the use of integrated procurement.
Price review
The inclusion of price revision clauses is mandatory in the award procedures, which are activated due to changes in the cost of the work, supply or service, increasing or decreasing, exceeding 5% of the total amount and operate to the extent of the 80% of the variation itself, in relation to the services to be mainly performed.
Qualification of contracting stations
The contracting stations of the unions of municipalities, of the provinces and metropolitan cities, of the provincial capitals and of the regions, are registered in the ANAC list of qualified contracting stations with reserve. The aforementioned contracting stations must submit an application for registration with reserve in the lists of contracting stations and qualified central purchasing bodies starting from 1 July 2023, so as to provide assistance in favor of other non-qualified SAs.
The same, starting from January 1, 2024, will have to submit an application for registration in the same lists. Conditional registration has a duration not exceeding 30 June 2024.
Qualification is expected for:
- direct assignment of services and supplies exceeding the thresholds;
- assignment of works exceeding €500.000.
The qualification system will come into force on 1 January 2024.
New and old code: transitional period
A transitional period is envisaged in which the 2 codes will coexist, which will end on 1 January 2024.
The new code enters into force on 1 April 2023, but its provisions take effect from 1 ° July 2023; however, for notices published before that date, the rules of the old procurement code continue to apply (legislative decree 50/2016).
(source BIBLUS-NET)