New Public Procurement Code: Changes as of January 1, 2024

Multiple provisions of the new Public Procurement Code^[1] (the “Code”) became effective on January 1, 2024; the remaining rules had taken effect in July 2023.

Changes mainly concern the digitization of the procurement lifecycle, with a focus on implementing the digital procurement ecosystem through certified platforms and the National Database of Public Contracts (Banca Dati Nazionale dei Contratti Pubblici, or “BDNCP”), as well as the publications and transparency regime for public contracts^[2]. New rules will apply to all procedures undertaken as of January 1, 2024 (including procurement procedures included in the NRRP), while those undertaken on or prior to December 31, 2023 will follow the guidelines^[3] issued by the Italian Anticorruption Authority (Autorità Nazionale Anticorruzione, or “ANAC”).

These changes should lead to fully digital management of public procurement, designed to enhance the efficiency of public administrations, as envisaged in milestone M1C1-75 of the NRRP. To make this possible, public administrations implemented new digital infrastructures and the ANAC issued several resolutions and communications with operational guidance for managing the transition^[4].

Certified digital procurement platforms

The first significant change in 2024 concerns digital management of public tenders.

As of January 1, 2024, contracting agencies and economic operators must use “certified” digital platforms to conduct the entire lifecycle of public contracts from planning to design, assignment, and contract execution. For example, through these platforms, economic operators will be able to access tender documentation, transmit data and documents, and submit the Single European Tender Document and bids; for their part, contracting stations will be able to request the CIG (the procurement identification code^[5]), carry out technical, accounting, and administrative oversight of contracts during execution, and thus manage guarantees.

Contracting agencies had until December 31, 2023, to arrange “certified” platforms, following the guidelines in AGID Determination No. 137 of June 1, 2023^[6]. Contracting agencies that lack certified platforms will use those made available by other entities (such as other contracting agencies, central purchasing bodies or aggregating entities, and regions and autonomous provinces—which can also use external operators that guarantee the operation and security of the platforms) for all phases of the public contract lifecycle^[7].

The ANAC maintains a list of certified platforms that indicates (public and private) platform owners and operators^[8]. The list is available at the following link: http://dati.anticorruzione.it/#/regpiacert. To date, there are 43 certified platforms that all contracting agencies must use to manage the entire contract lifecycle.

Digital verification of surety bonds

Another important feature of the new Code concerns the digital issuance and verification of a surety bond accompanying a bid^[9].

Under the new Code, a surety guarantee may be issued at the contractor’s discretion by a banking or insurance company or financial intermediary that issues guarantees exclusively or predominantly and that fulfills solvency requirements provided by sector laws. Surety guarantees must be signed digitally and must be capable of being verified electronically by the issuer or managed through the use of appropriate platforms.

These changes were to take effect on January 1, 2024, but the ANAC^[10] “noted the difficulties” of having operating platforms that enable issuance and digital management of surety policies and offered a transitional solution by postponing effectiveness of these rules to June 30, 2024, considered “the time strictly necessary to allow the evolution of systems toward the use of platforms interoperating with e-procurement platforms or the development of websites accessible to contracting stations.”

Under the new transitional system, contracting stations may verify the authenticity of policies guaranteeing bids via PEC or on the issuer’s website, if one exists, with all requirements under the regulations for the verification of guarantees fulfilled. An EU insurance company operating in Italy that does not have a website for verification of surety guarantees should obtain an Italian PEC address, pending availability of the European PEC.

Operation of the National Database of Public Contracts

Also starting January 1, 2024, the BDNCP is expected to be operational. The new database will interoperate with the National Digital Data Platform^[11] to make available all information and services for effective digital management of the procurement lifecycle, including ensuring compliance with publication and transparency obligations.

The most innovative facet of the new BDNCP is its interoperability with other databases of certifying bodies, such as those of the Ministry of Justice, the Ministry of the Interior, and the Revenue Agency.

The database consists of six sections:

• Unified Registry of Contracting Stations (Anagrafe Unica delle Stazioni Appaltanti, or “AUSA”): The AUSA was established by Article 33-ter of Decree-Law No. 179 of October 18, 2012; under the new Public Procurement Code, it contains a list of contracting stations qualified under Articles 62 and 63 of the Code.
• Public Contracts Platform (Piattaforma dei Contratti Pubblici, or “PCP”): This is the set of web and interoperability services through which procurement platforms can interoperate with the BDNCP for digital management of public contracts.
• Platform for Legal Publication of Documents: This platform is the portal through which ANAC publishes documents to make them accessible.
• Virtual Economic Operator’s File (Fascicolo Virtuale dell’Operatore Economico, or “FVOE”): This platform allows access to an economic operator’s information and can be used to verify fulfillment of requirements and the absence of grounds for exclusion. Economic operators must enter all the relevant data in the file, which is automatically updated by certifying bodies through interoperability with their databases.
• Register of Economic Operators: This platform contains the list of operators involved in any capacity in public contracts and also accesses information in the Register of Companies.
• Computer Records: This section records information about economic operators identified by the ANAC that will go into their respective FVOEs.

Economic operators can access the PCP, the Platform for Legal Publication of Documents, and their FVOEs through the new ANAC Services Portal, as of January 2, 2024 found here: https://portale-servizi.anticorruzione.it/home.

Publication of documents

As of January 1, 2024, contracting stations will no longer have to fulfill publication obligations through the Official Gazette, but instead will do so through the ANAC Platform for Legal Publication of Documents.

The ANAC will both serve as the guarantor of national publication of acts and handle data transmission to the EU Publications Office for notices of amounts equal to or above the essential thresholds.

For example, the three-year program and its annual updates for work and purchases of goods and services, notices, and related pre-information notices are subject to mandatory publication^[12].

Every document will be effective from the date of publication in the Italian database, and all documents will be accessible both through the digital platforms of the entities and through the institutional websites of the contracting agencies and will remain continuously accessible through the link with the BDNCP.

Contracting agencies and awarding entities are responsible for the accuracy and truthfulness of the information contained in the documents transmitted to the BDNCP.

The service for accessing the legal publication platform has been publicly available since January 2, 2024, at this link: https://pubblicitalegale.anticorruzione.it/. Publications are divided into three sections: notices and call notices, tender outcomes, and other notices.

Contracting agencies must handle data transmission through certified platforms, except for emergency and civil protection procedures that follow the proceedings indicated in the communiqué from the president of the ANAC dated September 19, 2023^[13].

Transparency obligations

Under the Transparency Decree^[14], for procedures initiated after January 1, 2023, contracting agencies must transmit data via the BDNCP and include the respective hyperlinks on the “Transparent Administration” (Amministrazione Trasparente, or “AT”) pages of their institutional websites.

Contracting agencies must still publish all data not subject to mandatory publication on the BDNCP on the AT pages of their institutional websites.

Published data must meet the quality standards set forth in the Resolution of June 20, 2023, No. 264^[15] and must remain available for at least five years (when that period ends, the BDNCP or contracting agencies must retain the records for possible requests for general public access^[16]). If data is not published in the BDNCP or on AT pages, the regulations on “simple” public access^[17] apply. These allow anyone to request access to documents and information that administrations had the legal duty to publish without the need to demonstrate any qualified interest.

Possible critical issues in the implementation of the new rules

The changes to digitization in the new Code are welcome, but they do raise some issues, particularly with respect to certified platforms.

Currently, there are 43 certified platforms that must serve the thousands of contracting stations operating nationwide, and some of them are certified for only one phase of the contract lifecycle^[18].

Therefore, a contracting agency might find itself using two or even three different platforms for the planning, awarding, and execution phases; this dynamic may create critical management issues rather than simplifying the process. In addition, no clarification has been provided regarding the technical/operational means by which a contracting agency without a certified platform can use another administration’s platform.

Another critical issue concerns the timing of fully implementing the digitization process.

Though the rules became fully applicable on January 1, 2024, many communications and operational resolutions were issued only in the final weeks of December (while others still have not seen the light of day, including one explaining the Register of Economic Operators^[19]). Additionally, some components have not yet been implemented (e.g., platforms for online verification of sureties), and there is uncertainty about many facets (e.g., interoperability of the BDNCP).

As the European Commission stated, digitizing “goes beyond simply moving to electronic tools” and requires “rethinking public procurement process with digital technologies in mind^[20].”

Doing so takes time, planning, and adequate resources. Without them, the digitization process currently underway is doomed from the start.

[1] Legislative Decree No. 36/2023.

[2] Specifically, Article 225, paragraph 2 of the Public Procurement Code stipulates that the provisions of Articles 19, 20, 21, 22, 23, 24, 25, 26, 27, 28, 29, 30, 31, 35, 36, 37, paragraph 4, 81, 83, 84 and 85, 99, 106, paragraph 3, last sentence, 115, paragraph 5, 119, paragraph 5, and 224, paragraph 6, as well as Article 4, paragraph 1(c) and Article 6, paragraph 1(c) of Annex II 4 shall take effect January 1, 2024.

[3] Resolution No. 582 of December 13, 2023.

[4] ANAC Resolution June 20, 2023, No. 261; ANAC Resolution June 20, 2023, No. 264; ANAC President Communiqué, September 19, 2023; ANAC Resolution December 13, 2023, No. 582; ANAC Resolution December 19, 2023, No. 601; ANAC Resolution December 19, 2023, No. 606.

[5] Agreement MIT-ANAC Resolution No. 582 of December 13, 2023.

[6] Agid Determination No. 137 of June 1, 2023, “Technical Requirements and Certification Methods for Digital Procurement Platforms.”

[7] Art. 25 par. 2 of the Public Procurement Code.

[8] As indicated by Art. 26 par. 3 of the Public Procurement Code.

[9] Regulated by Article 106(3) of the Public Procurement Code and ANAC Resolution No. 264 of June 2023 (as amended by Resolution No. 606 of December 19, 2023).

[10] In Resolution No. 606.

[11] Article 50 Digital Administration Code, Legislative Decree No. 82 of March 7, 2005.

[12] Under Article 37 par. 4, 81 and 83 of the Public Procurement Code (effective as of January 2024).

[13] https://www.anticorruzione.it/-/comunicato-del-presidente-del-19-settembre-2023-art.140.dlgs.36.2023

[14] Legislative Decree No. 33 of March 14, 2013.

[15] As amended and supplemented by Resolution of December 19, 2023, No. 601.

[16] Pursuant to Art. 5, par. 2 of the Transparency Decree.

[17] Under Art. 5 par. 1 of the Transparency Decree.

[18] Art. 25 of the Public Procurement Code.

[19] Required under Art. 7.3 of ANAC Resolution No. 261 of June 2023.

[20] https://single-market-economy.ec.europa.eu/single-market/public-procurement/digital-procurement_en.