With Legislative

Decree No. 50/2016 (the so-called “Public Procurement Code”, hereinafter “PPC”

or “the Code”) Italy implemented the EU Directives 2014/23/EU, 2014/24/EU and

2014/25/EU, concerning, respectively: (i) the award of concession contracts;

(ii) public procurement; and (iii) procurement by entities operating in the

water, energy, transport and postal services sectors. The PPC, by repealing the

2006 Code on public procurement (Legislative Decree No. 163/2006), reorganised

the pre-existing Italian legislation on public contracts relating to public

works, services and supplies.

The Code

entered into force on April 19, 2016 and, as a general rule, applies to notices

published starting from April 20, 2016 even though the 2006 Code is still

applicable to the cases specified by the President of ANAC (the Italian

Anti-Corruption Authority) in his Communication dated May 11, 2016 (e.g. negotiated procedures following

public tenders held in accordance with the rules established by the 2006 Code,

where no bids have been submitted).

Notably,

the PCC, with its 220 articles, does not contain an exhaustive regulation of

the matters at stake. In fact, a number of implementing measures are left to be

adopted by the President of the Council of Ministers, by the Ministry of

Transport and Infrastructures and by ANAC, with the aim of specifying some

“technical” aspects not dealt within the PCC. It is noteworthy that ANAC

implementing measures are referred to in the Code as “guidelines”, which seems

to imply that they have a “soft-law” character.

Regarding

the “innovative” aspects of the PCC, it should be noted that simplification and time and cost savings are

two of its major guidelines. Against this background, the following provisions

are worth mentioning. Firstly, the Code provides for a more extensive use of

electronic and IT means for the negotiation and award procedures, which should

therefore become quicker and less time-consuming (see art. 58). Secondly, the

PCC establishes more stringent rules on aggregations and central purchasing

bodies (art. 37), which are now to be resorted to, notably, every time a Contracting

Authority (“CA”) lacks the qualification requested by art. 38. The latter is an

outstanding innovation of the Code, in that it establishes a “qualification

system” both for CAs and for central purchasing bodies. This qualification

system goes hand in hand with the already existing reputational criteria for

tenderers (art. 83). In fact, CAs are now required to display the possession of

certain requisites (in terms of quality, efficiency and organisational

structure) defined by a Decree of the President of the Council of Ministers

which, at the time of writing, has not yet been adopted.

A further

tool is the so-called “European Single Procurement Document” (“ESPD”), now

expressly mentioned in art. 85 of the PCC, which aims at making public

procurement procedures less cumbersome. The ESPD is, basically, a self-declaration

form filled in by companies, allowing them to avoid the submission of

consistent documentation proving the fulfilment of the exclusion and selection

criteria of public tenders. Ultimately, the possibility to resort to a mere

self-declaration, in accordance with the model provided for by the EU, should

result in significant cost and time savings for companies wishing to submit

their application to tender.

The new

rules on litigation concerning public tenders are another paramount example of the

simplification rationale lying behind the PCC. Not only does the Code establish

stricter terms to challenge the exclusion from a public tender procedure (see

art. 204, paragraph 1), it also provides for a number of alternative dispute

resolution mechanisms to reduce court litigation and, above all, to allow for quicker

settlements of potential disputes.

Within all

the amendments carried out with the PCC – and notwithstanding the relevance of

each of them – one is of special importance and deserves, as such, specific

attention. Pursuant to the Code (see, in particular, art. 95), the

“economically most advantageous tender” is now the privileged criterion CAs must resort to when awarding public

contracts. The preference for this criterion over the “lowest price” one has

undoubtedly relevant consequences private companies should be aware of. In

fact, the Italian Legislature, following the principles established in the aforementioned

EU Directives on public contracts, has explicitly recognised that only in a limited

number of occurrences can the “lowest price” be a reasonable and efficient

parameter upon which to base an award decision. For example, this may be the

case for services and supplies displaying “standard features” (art. 95,

paragraph 4). In the other cases, CAs must consider the comprehensive value of a

given tender as a whole, and consequently select the one which most benefits

the Public Administration from an economic point of view.

While the

lowest price criterion has the undeniable merit of being extremely easy to

evaluate, the economically more advantageous offer is considerably more flexible. It allows, in particular,

CAs to consider “socially relevant” aspects of the tenders submitted including,

notably, environmental ones. Pursuant

to art. 95, paragraph 6 of the PCC “the economically more advantageous tender,

identified on the basis of the price/quality ratio, is assessed in accordance

with objective criteria, such as […] environmental aspects”.

Within the

previously mentioned “environmental aspects”, CAs may give credit, for example,

to the fact that a tenderer owns an “Ecolabel” (which identifies products and

services having a reduced environmental impact), as well as to the reduced use

and maintenance costs of the products and services in question, also in light

of the related energy consumption (art. 95, paragraph 6, letters a) and b)). Furthermore, CAs may award public contracts by giving special

relevance to the life-cycle cost of

the products in question, which includes the “collection, disposal and

recycling costs” (art. 96).

These

provisions are to be matched with the strengthened role of “Minimum Environmental

Criteria” (“MEC”). Pursuant to art. 34 of the Code, CAs must contribute to the

fulfilment of environmental goals, by including, in tender documentation and

notices, the MEC technical specifications and clauses, as drafted by an ad hoc Decree of the Ministry of

Environment. Moreover, the MEC must be taken into account by CAs when they are applying

the economically more advantageous tender criterion, in line with art. 95,

paragraph 6 of the PCC.

The renewed

attention to environmental protection is not an Italian singularity. Rather, it

represents a major goal set at the EU level and part of a wider project, i.e. the Europe 2020 strategy, which

aims, inter alia, at a more sustainable economy. Among the

tools to achieve this goal is “Green Public Procurement” (see the Commission

Communication “Public procurement for a better environment”, COM (2008) 0400

final), an expression which, as the words themselves suggest, refers to the

need to ensure that the rules on public procurement are more

“environmentally-oriented” both at the EU and at the national level. In short,

this strategy should further the pursuance of environmental goals besides

competition when CAs are to award public contracts.

In addition

to simplification, the protection of the environment is therefore a guiding objective

of the 2014 Directives on public contracts, which, as such, should be properly

implemented by Member States. While on the one hand national Legislators are

placed under the duty to ensure the correct legislative

implementation of such principle, on the other hand CAs themselves have a

relevant role to play.

In fact, the

concrete achievement of this said goal will largely depend on the consideration

CAs will give to environmental aspects, especially with respect to the

economically more advantageous tender criterion. Given that this criterion can

be more flexibly applied, and that therefore CAs retain quite a broad margin of

discretion in this respect, only time will tell whether the EU and national

environmental goals will be achieved in practice.