On Feb. 1, the regulatory changes to public contract regulations introduced by the 2019-2020 European Law (Law No. 238 of Dec. 23, 2021, on “Provisions for the fulfillment of obligations arising from Italy’s membership in the European Union”) came into force, mainly aimed at resolving the critical issues that emerged in the infringement procedure opened by the European Commission against Italy (No. 2018/2273).
EU Law’s amendments to the Public Contracts Code.
Exclusion for non-final tax or social security irregularities
Among the changes of a general scope, we draw attention to the significant changes introduced to Article 80, paragraph 4 of the Code, regarding the reason for exclusion for tax or social security irregularities that have not yet been definitively ascertained, which had already been introduced by the Simplification Decree (Decree Law 76/2020), which had provided, alongside the reason for exclusion for serious irregularities that had been definitively ascertained, also an optional reason for exclusion, for irregularities that had not yet been definitively ascertained.
This has given rise to interpretive issues and criticism, not only because of the wide margin of discretion left to the contracting stations, but also because of the equalization of the violation severity threshold, set at 5,000 euros, as for definitive violations.
Within this framework, on the other hand, the European law has specified that serious violations that have not been definitively ascertained in tax matters are to be understood as those established by a special decree of the Minister of Economy and Finance, to be issued within sixty days from the date of entry into force of the law (in agreement with the Minister of Sustainable Infrastructure and Mobility and after receiving the opinion of the Department for European Policies of the Presidency of the Council of Ministers), related to the value of the contract and in any case not less than 35. 000 euros, thus introducing a higher threshold, more proportionate to the lower severity intrinsically linked to non-final violations.
The Decree will also have to establish limits and conditions for the operation of the new cause of exclusion, thus providing contracting stations with indications that could be very useful, given the very wide margin of appreciation left by the legislator, not only in carrying out the preliminary investigation, but also in justifying any exclusion (or non-exclusion) measure.
More changes on the subject of subcontracting
The legislature also took the opportunity to close some open issues related to the subcontracting discipline by eliminating the cause of exclusion of the operator for reasons under Article 80 referable to the subcontractor.
Thus, the economic operator’s burden of verifying the grounds for exclusion on its subcontractors is removed, while it is the subcontractor who will have to prove the absence of the aforementioned grounds for exclusion.
In addition, the prohibition on subcontracting to economic operators who participated in the procedure for awarding the contract was repealed, as well as the obligation to indicate, at the time of the bid, the trio of subcontractors; and this also with reference to concessions, also providing that the concessionaire will be required to replace subcontractors with respect to whom grounds for exclusion under Art. 80.
Finally, the 30 percent limit on subcontracting was also repealed with reference to contracts to be carried out abroad.
Design services and engineering and architectural assignments
Turning then to the more sectoral novelties, the operability of subcontracting in design assignments has been significantly extended, specifying that the designer can also subcontract to third parties activities such as specialized consultancy inherent in the energy, environmental, acoustic and other sectors not related to the disciplines of engineering and architecture for which special certifications or expertise are required, while still retaining the designer’s responsibility for the purposes of these activities as well. Translated with DeepL.com (free version)
The scope of entities that can be entrusted with engineering and architectural services has also been expanded to include all entities licensed under national law to offer such services on the market. This is in line with the principle of non-discrimination on the basis of the legal form assumed, and in order to transpose what the Court of Justice of the EU had ruled that legislation, such as Italy’s, which excluded the possibility for nonprofit entities, although qualified and providing such services, to participate in a procedure for the award of a public contract relating to such services, was unlawful (judgment of June 11, 2020, Case C-219/19). Translated with DeepL.com (free version)
Execution of contracts and payment of benefits
Several provisions have been introduced on the obligations of the RUP, the construction manager and the executor, regarding SAL (providing for an accelerated settlement procedure), invoice issuance and payment certificates.
Entry into force and open issues
The aforementioned provisions shall apply to procedures whose notices of call are published after the date of entry into force of the law as well as, in the case of contracts without publication of notices, to procedures in which invitations to submit bids or quotations have not yet been sent as of the same date.
***Content produced with the collaboration of Attorney Elena Mitzman, our partner in the legal area.
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