March 23, 2020

Cura Italia Decree and Ordinance 630/2020: new rules for public contracts

Law Decree No. 18 of March 17, 2020 (“Cura Italia Decree“) and ordinance No. 630 issued by the Head of the Department of Civil Protection on February 3, 2020 (“Ordinance 630/2020” or “Ordinance”) introduced several derogations to the standard rules that govern the public procurement process for purposes of dealing with the Covid-19 emergency.

These regulatory measures are primarily aimed at supporting and accelerating the procedures for the award of contracts by public authorities in order to ensure the necessary goods and services to meet all needs connected to the Covid-19 epidemic. In addition, the Cura Italia Decree also contemplates the impact of the emergency on the fulfilment of contractual obligations.

  1. Main provisions introduced by the Cura Italia Decree

Purchases connected to the development of IT systems for smart working and network services for the access of citizens and businesses (Article 75)

Article 75 of the Cura Italia Decree simplifies the procedure for the purchase of IT services on the cloud, preferably based on the software service model.

Specifically, it allows contracting authorities and independent administrative authorities to use the negotiated procedure without prior publication of a call for tender for the purchase of the abovementioned IT services; this will remain in place until December 31, 2020. A contractor shall be selected from among at least four economic operators, including one innovative start-up or small- or medium-sized innovative enterprise.

Provisions on delays or breaches of contractual obligations resulting from the implementation of containment measures and price anticipation in the field of public contracts (Article 91)

In case of delays or breaches of contractual obligations, the need to comply with the containment measures for the Covid-19 emergency–period (established by Law Decree No. 6 of February 23, 2020) shall be taken into account for the purpose of assessing the debtor’s liability, as well as application of penalties or termination of the agreement.

Moreover, Article 91 amends Article 35 of Legislative Decree No. 50 of April 18, 2016 (“Public Procurement Code”) by expressly extending the possibility to pay the contractor 20% of the contract value within fifteen days from the actual start of the service to cases of emergency delivery. This provision ensures immediate liquidity for companies in case of anticipated delivery to speed up the start of the service.

Donations in support of the fight against the epidemiological emergency connected with Covid-19 (Article 99)

Public healthcare facilities are allowed to purchase goods and services through direct negotiation, without prior consultation with two or more economic operators, provided that (i) such activities are aimed at addressing the Covid-19 emergency and (ii) the purchase is financed exclusively by donations made by individuals or private legal entities.

This simplified procedure for the acquisition of goods and services is permitted only during the Covid-19 emergency–period and, in any case, until July 31, 2020.

Platforms for distance learning (Article 120)

Educational institutions may purchase digital platforms and devices necessary for distance learning by using framework agreements and the electronic marketplace of the public administration. If this is not possible, educational institutions are authorized to derogate from the provisions of the Public Procurement Code.

  1. Ordinance 630/2020: main features

In order to carry out certain activities necessary to deal with the Covid-19 emergency, the Head of the Department of Civil Protection, as well as public entities that participate in the implementation of such actions, may derogate from several regulations specifically listed in Ordinance 630/2020.

For instance, they are allowed to use the lowest price as an award criterion in cases beyond those provided in Article 95; the subcontracting is effective from the date of the contractor’s request, with no need to wait 20 days before starting the relevant activities as under Article 105.

Moreover, as a general principle, Ordinance 630/2020 confirms that when the required conditions are met, for the performance of those activities the Head of the Department of Civil Protection and the other authorized public entities may use negotiated procedures without prior publication of a call for tenders (Article 63) and may employ the urgent procedures under Article 163.

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