The new Public Procurement Code: New items, application, and transitional regime

Thanks to Antonino Iago Gentile for collaborating on this article

With the publication in the Official Journal of Legislative Decree No. 36 of March 31, 2023, the project to reform the Italian Public Procurement Code has finally been completed^[1]. The new Public Procurement Code (the “Code”) will apply to public tenders for work, services, and supplies launched as of July 1, 2023. The detailed transitional regime envisaged is also summarized below.

Please find below a list of some of the main items introduced by the new Code, with a particular focus on those that may be relevant for suppliers of goods and services to Italian public entities.

A. Main new items:

– Register of Contracting Authorities and Central Purchasing Bodies (Article 63): The entry in the new register set up by the National Anti-Corruption Authority (ANAC) is foreseen for supplies and services above the thresholds for the direct awarding and for works above EUR 500,000.00.

– Single Project Manager (Article 15): The RUP becomes the “single project manager” for the planning, design, awarding, and execution phases of each procedure falling within the scope of the Code. The RUP may be appointed from among the employees employed by the contracting authority, including those employed on a temporary basis.

– Direct contracting (Article 40):

• For services and supplies up to EUR 140,000.00, direct award is possible even without consultation of several economic operators; above that, for amounts from EUR 140,000.00 up to EUR 215,000.00 – in the case of contracts awarded by sub-central contracting authorities – the negotiated procedure without a call for bids may be used after at least five economic operators are consulted.
• For work, the threshold for direct awards is set at EUR 150,000.00. The negotiated procedure without a call for competition is provided for work from EUR 150,000.00 up to EUR 1 million and from EUR 1 million up to EUR 5,382 million, after consulting at least five and 10 economic operators, respectively.

– Subcontracting (Article 119): Incorporating the findings of the EU Court of Justice and the Commission, subcontracting without percentage limits is now permitted and “cascade subcontracting” is allowed; however, it will be possible to limit these by including specific reasons in the tender document justifying the need for such a decision.

 – Price revision clauses (Art. 60): In the awarding procedures it is now mandatory to include price revision clauses that are activated upon the occurrence of specific objective conditions that determine variations in the cost of the work, supply, or service, either upward or downward, exceeding 5% of the overall amount and operating to the extent of 80% of the variation itself. ISTAT indexes used to determine the variation in costs and prices, together with the index calculation methodology, will be made public on the institutional portal of the institute. The Ministry of Infrastructure and Transport may provide additional indices to be used, in agreement with the ISTAT.

B. The transitional regime

The new Public Procurement Code entered into force on April 1, 2023, while its provisions and annexes became effective on July 1, 2023.

As of July 1, 2023, therefore, the provisions of the old Public Procurement Code (Legislative Decree No. 50/2016) will continue to apply exclusively to proceedings already in progress, i.e., those for which notices have already been published prior to that date. Moreover, as of July 1, 2023, the guidelines and regulations of the National Anti-Corruption Authority have been definitively superseded, unless otherwise stipulated in the new Code.

However, a particularly complex transitional regime is outlined for repeal of the old code. Certain provisions of Legislative Decree No. 50/2016 will continue to apply until December 31, 2023: these are provisions on scheduling, access to documents, subcontracting, advertising, digitization, and verification of requirements.

C. Ultra-active provisions

Among the main rules that will continue to apply during the transitional period are the following:

i. Rules on advertising

The rules of the new Code providing for the publication of acts through the National Public Contracts Database will be operational as of January 1, 2024. In the meantime, the provisions for the publication of acts set forth in Articles 70, 72, 73, 127 paragraph 2, and 129 paragraph 4 of the former Legislative Decree No. 50/2016 will continue to apply. Therefore, until December 31, 2023, notices will still have to be published in the Official Gazette of the Italian Republic, in the special section dedicated to public contracts.

Also, until December 31, 2023, the following will continue to apply: (i) Article 21(7) of Legislative Decree No. 50/2016 on the publication of the two-year program for purchases of goods and services and the three-year program for work; and (ii) Article 29 on transparency obligations.

ii. Digitization standards

All the rules of the former Public Procurement Code concerning the digitization of procedures (and in particular Articles 44, 52, 53, 58 and 74) will also be effective until December 31, 2023. As a result, the new modalities for accessing documents digitally and via the e-procurement platforms of public administrations will only be effective as of January 1, 2024.

Until the beginning of next year, due to the lack of implementation of the new digitization rules, the rules governing the submission of the single European tender document (referred to in Art. 85 of Legislative Decree No. 50/2016), on the filing of the subcontracting contract (referred to in art. 105 paragraph 7 of Legislative Decree No. 50/2016), on the virtual file of the operator (referred to in art. 81 of Legislative Decree No. 50/2016), on the ANAC Observatory, and on the Computerized Contracts Register (referred to in art. 213 of Legislative Decree No. 50/2016) shall apply.

iii. Rules on guarantees

Article 225(7) further provides that the provisions of Decree No. 31 of January 19, 2018 of the Ministry of Economic Development, containing the standard contract outlines for surety guarantees, shall continue to apply with regard to guarantees and until the adoption of a specific decree. This reference shall be intended to be made to the Ministerial Decree No. 193 of September 16, 2022 that provided for new standards and repealed the Decree No. 31 of January 19, 2018.

iv. National Recovery and Resilience Plan (PNNR)

For PNRR contracts, the special rules specifically introduced to govern the relevant procedures will continue to apply.

[1] Launched with Delegated Law No. 78 of June 21, 2022.