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Reform of the Procurement Code

Hybrid format - Rome, 31/05/2022, National Roundtable

The Procurement Code is primarily an instrument intended to facilitate the rapid, efficient and innovative execution of public works. The current Code, which dates back to 2016, has been the subject of continual reforms that have made it not only a never-ending story but also in some extremely important aspects an unfinished one. Examples include the digitalization and qualification of contracting authorities, the discipline of which still struggles to achieve full implementation. The reforms have not only modified a significant number of the Code’s provisions, but has also added new rules that have contributed to a challenging jumble of exceptions.

These reasons are what underpin recent draft legislation that lays down the principles and criteria for a reform of the Procurement Code, motivated not least by the constraints imposed by the National Recovery and Resilience Plan (PNRR). The plan outlines a package of investments associated with an ambitious reform program divided into six missions that mirror the six pillars of the Next Generation EU program: digitalization, innovation, competitiveness and culture; the green revolution and ecological transitions; sustainable mobility infrastructure; education and research; social cohesion and inclusion; and health.

The goal of the draft law is to introduce into the legislation on public contracts a series of Euro-unitary principles, which by now have been accepted at international level as well, such as those on sustainable infrastructure. The draft law focuses specifically on the prevention of corruption, the involvement of local communities and concession award systems linked with the employment of women and young people. The Procurement Code reform is intended to be instrumental to the realization of the undertakings described in the PNRR and that are, in any case, decisive to the implementation of transitions still unaccomplished, such as those aimed at the digitalization of the entire system of assigning public contracts.

 

ANAC has been working particularly closely on this latter aspect, and has set a series of major objectives: digitalize the entire call for tender procedure and phase of contract execution in such a way as to allow control of the full contract cycle, expand the data base of national public contracts, and establish a digital file for each economic operator so as to reduce the costs of participation as well as speed up procedures and checks.  

The proposed reform must therefore be concretized in the form of provisions capable of improving and simplifying the current legislative framework. To that end, it is going to be necessary to resolve two conspicuous dilemmas: either issue an entirely new Code or modify the existing one; structure the Code in a highly detailed manner or establish less stringent obligations by assigning their virtuous implementation to women and men who will have to operate in function of them.

The best choice will be to describe extremely clear and simple procedures in terms that have a single, unified meaning within the code text. Decisive will be the inclusion of provisions capable of foregrounding the alternative dispute resolution, and ensuring compliance with collective bargaining agreements, green clauses and clauses on the employment of women and young people; as well as reducing the number of contracting authorities and disciplining their qualification, with a view to qualifying exclusively those with a high degree of professional expertise.

It would then be advisable to establish a measure by which to counter that “fear of signing” that restricts and conditions the ability of public officials and managers to function. A solution could lie in extending the scope of application of the Court of Auditors’ legality check for contracts valued above the EU ceiling.

Once the new Procurement Code is issued, training will be paramount and for that, the role of the National School of Administration will be central. That institution will have to be prepared to update public officials and managers on new legislation, readying them to meet the challenges that Italy will subsequently be called upon to confront.