Amendments to the Public contracts Code in Light of the 2019-2020 European Law

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Law 23 December 2021, no. 238 containing “Provisions for the fulfillment of the obligations deriving from Italy’s membership of the European Union – European law 2019-2020”

The European law 2019-2020 has introduced, among others, important innovations in terms of public tenders.
Art. 10 l. no. 238 of 2021, in particular, made significant changes to the rules on public contracts, specifically concerning:

a) Subcontracting of design assignments;

b) The list of economic operators admitted for the award of architecture and engineering services;

c) The reasons for exclusion, pursuant to art. 80 paragraphs 1 and 5 of Legislative Decree 50/2016, of an economic operator from the public tender procedure;

d) The identification of the type of tax violations not definitively ascertained relevant to the exclusion of the economic operator from the public tender procedure;

e) Indication of triad subcontractors;

f) The general conditions for the award of subcontracted services;

g) Subcontracting in concession contracts;

h) The cross-border execution of the subcontract;

i) The payment of the contracted services.

A) SUBCONTRACTING OF PLANNING ASSIGNMENTS

The modification introduced by art. 10, paragraph 1, letter a) of the European Law concerning art. 31, paragraph 8, of Legislative Decree 50/2016 essentially broadened the objective scope of operations of subcontract. Specifically, the designer may entrust the following additional activities to third parties: “specialist consultancy activities related to the energy, environmental, acoustic and other sectors not inherent to the disciplines of engineering and architecture for which specific skills or certifications are required, provided that the designer is responsible also for these activities “.

B) LIST OF ECONOMIC OPERATORS ADMITTED FOR THE ASSIGNMENT OF ARCHITECTURE SERVICES

Art. 10, paragraph 1, letter B) of the European Law – following the guiding principle of non- discrimination between the various subjects on the basis of the legal form assumed in the admission of economic operators of services relating to architecture and engineering – has made several amendments to art. 46 of Legislative Decree 50/2016. In particular: i) in the list of economic operators admitted to public tenders, is introduced the category of other entities authorized under national law to offer engineering and architecture services on the market (see new letter d-bis); ii) the admission of these new subjects is also allowed in the context of temporary groupings, without prejudice to the devolution to the MIMS of the task of establishing the minimum economic-financial and technical organizational requirements that these subjects must possess.

C) GROUNDS FOR EXCLUSION PURSUANT TO ART. 80 PARAGRAPHS 1 AND 5

With the introduction of art. 10 paragraph 1, lett. C) nos. 1 and 3 of the European Law, it is deleted the sentence referred to in art. 80 paragraphs 1 and 5 of Legislative Decree 50/2016 which provided, in the cases established therein, for the exclusion of economic operators also for circumstances attributable to their subcontractors.

D) IDENTIFICATION OF THE TYPE OF TAX VIOLATIONS NOT DEFINITIVELY SANCTIONED RELEVANT FOR THE PURPOSE OF THE EXCLUSION OF THE ECONOMIC OPERATOR

Art.10 paragraph 1 letter. C) no. 3 of the European Law has amended the provisions referred to in art. 80 paragraph 4, fifth sentence, introducing the provision according to which have to be considered serious violations not definitively sanctioned in tax matters: i) those established by a specific Decree of the Minister of Economy and Finance, in agreement with the Minister of Sustainable Infrastructure and Mobility and after obtaining the opinion of the Department for European Policies of the Presidency of the Council of Ministers ii) which, in any case, must be related to the value of the contract and in any case for an amount not less than 35,000 euros.

E) INDICATION OF THE TRIAD OF SUBCONTRACTORS

Art.10 paragraph 1 letter d) no. 2 l. 238/2021 repealed art. 105 of Legislative Decree 50/2016 which provided for the obligation on the part of the economic operator to indicate already at the time of submitting the offer the triad of subcontractors for works, services and supplies for an amount equal to or greater than the EU thresholds or, regardless of the amount based on the tender, for the activities most exposed to the risk of mafia infiltration

F) GENERAL CONDITIONS FOR THE ASSIGNMENT OF SUBCONTRACTING SERVICES

Article 10 paragraph 1 letter d) nos. 1, 1.2 and 1.3 reformed article 105 paragraph 4, Legislative Decree 50/2016, according to which – according to the new formulation – the subjects entrusted with public contracts will be able to subcontract the works, services or the supplies included in the contract, subject to the authorization of the contracting authority provided that: i) the subcontractor is qualified in the relevant category “and the reasons for exclusion referred to in Article 80 do not exist against him”; ii) at the time of the offer, the works or parts of works or services and supplies or parts of services and supplies to be subcontracted have been indicated.
The reform has substantially eliminated the burden of verification by the main competitor (who subcontracts the activities) of the reasons for exclusion pursuant to art. 80 of Legislative Decree 50/2016 deemed to exist on the subcontractor, placing this circumstance as a necessary condition for the assignment of the subcontracted activities: hence, it will be the subcontractor himself who must demonstrate the absence of the aforementioned reasons for exclusion.

G) SUBCONTRACTING IN CONCESSION AGREEMENTS

Article 10 paragraph 1 letter F) no. 1 deleted the third period referred to in paragraph 2 of article 174 of Legislative Decree 50/2016 according to which ” When presenting the tender, economic operators that are not microenterprises, SMEs, for the work, service and supply concessions for an amount equal or higher than the threshold referred to in Article 35(1), letter (a), indicate three names of subcontractors in the following cases: a) work, service and supply concessions for which no particular specialization is needed; b) work, service and supply concessions for which it is possible to find on the market three names of subcontractors to indicate, given the significant number of economic operators performing such activities”.
For this reason, the “large” economic operators will no longer be required to indicate, in the offer, the triad names of subcontractors.

H) CROSS-BORDER EXECUTION OF THE SUBCONTRACTING

Art. 10 paragraph 4 l. 238/2021 repeals art. 14 paragraph 2 of the regulation referred to in the Decree of the Minister of Foreign Affairs and International Cooperation 2 November 2017, n. 192, which provided that, for contracts to be performed abroad, subcontracts could not exceed thirty percent of the total amount of the contract.

I) PAYMENT OF THE TENDERED SERVICES

Art. 10, paragraph 1, letter e) l. no. 238 of 2021 added six new paragraphs (from 1-bis to 1-septies) to art. 113-bis (“Payment terms – Penalty clauses”) of Legislative Decree no. 50/2016, introducing a detailed discipline i) on the fulfilments falling within the competence of the works director (“direttore dei lavori”), the executor and the head of authorization procedure (“RUP”) as well as ii) the work progress, the invoice issuance and the payment certificate.

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