analysis
Guide to the reform of procurement system that is taking shape in Parliament from the new basic text of the delegation to the Government presented by the rapporteur Stefano Esposito
Joseph Latour and Mauro Salerno History article April 15, 2015
From A to V award and aggregation supervisory and variants. The new procurement reform has, in fact, largely composed already in the Public Works Committee in the Senate. The new basic text prepared by the speakers Stefano Esposito (Pd) and Marco Pagnoncelli (Fi) has already been enriched by a substantial package of fifteen amendments of the same speakers. A reform of the reform that already gives us many principles of the Code of contracts coming in 2016. We have put together seventy, recounting in detail the new system that is emerging in Parliament.
At the center of all there will be the Anac Raffaele Cantone, new connection point of supervision and regulatory powers in the field of public procurement. But not all. A new focus is given to the procedures: to be lighter, more collaborative, faster. The goal is to get a new code more compact than the previous one, which no longer requires the use of special procedures and notwithstanding. And that undermines the central role of design, that of contracting as controllers and above all the merit of the companies, valued not only on the basis of formal elements but also reputational criteria related to their history.
The direct awarding transparency, according to the new criteria of the reform, will also come in the forms of direct award. Must be ensured comparative evaluation of tenders, “given the object and the value of the service.”
Aggregation of contracting
The imperative is to reduce the number of 30 thousand contracting Italian. Therefore the text calls “forms of centralized purchasing and reduction in the number of contracting, made on the basis of the qualification system” mentioned before, with the possibility, “according to the level of qualification achieved, to manage contracts of greater complexity” . It remains, however, the possibility for small municipalities to entrust the races amounts of less than a million Euros without the use of central purchasing bodies and subjects aggregators.
> Register of Commissioners
At the Anac born a national register of Commissioners, from which to take each time a list of names on which to draw. Must respect “specific requirements of integrity, competence and professionalism.” In this way, the corruption phenomena would drastically cut down.
High labor intensity
For services intensive labor will create specific rules compared to other sectors: a reference to the special rules that will be taken with regard to the largest discount in the new Code, including the design, but not only. The standard is particularly expected from the services sector
Anac
The draft bill provides for the assignment National Anti-Corruption Authority “of broader functions supervision in the field of public procurement and concessions, also including control powers, recommendation, precautionary action and sanctions, as well as adopt measures to address such guidelines, notices-type, standard contracts and other instruments of flexible regulation, even with binding effect. “
Integrated contract
Here comes the braking on the procurement integrated. Which combines the demand for enhancing design contests. The new amendment of the speakers provides that ‘normally’ the race to take place on the basis of the final design. Only in cases where the contract or concession provide for the execution of works’ characterized by remarkable innovative content or technology, which exceed in value 70 per cent of the total of the work “will be able to resort to joint custody of design and work. In this case the criterion of the award will be the one of the largest discount. The use of integrated procurement, in short, as we read in the text of the amendment will have to be limited “radically.”
Permissions
One of the latest news of the delegation concerns the permissions related to projects in project financing. Here the goal is to avoid the false starts of projects, with assignments of contracts then frozen by the need to acquire the opinions provided by law. To overcome this, the delegation calls on the government to anticipate this phase, ensuring “the acquisition of all necessary approvals, opinions and acts of assent, however denominated by the award stage.”
The Avcpass database for verification of the requirements for access to the races will be reorganized. In the chapter on the reform to the qualification and the requirements of enterprises, the speakers also insert a reference to Avcpass, the database held by ANAC and the subject of controversy for years. In the new Code should also envisage “the revision and simplification of the system,” to make it easy to use for operators.
Pooling
He was much discussion during the hearings. With heavy criticism also came from the President ANAC Raffaele Cantone. Now the speakers treasure those signs asking the government to somehow limit the borrowing requirements between companies in the race. A phenomenon that has assumed the dimensions of a real market and that also allows businesses having no qualification to access the procurement market, relying on external support. The amendment clarifies that the “contract of availment” should indicate “in detail the resources and means provided, particularly with regard to cases where the object of availment consists of quality certificates or certificates proving the existence of adequate entrepreneurial organization to of participation in the race, and reinforcing means of verification regarding the actual possession of the requirements and subject of pooling resources from the auxiliary as well as about the actual use of the same resources in the execution of the contract. ” All this, however, in line with EU principles (very loose on the subject).
Databases
The role of databases in general will be enhanced. The delegation, in fact, clearly speaks of “burden reduction documentary borne by participants and simplification of procedures for checking by the contracting authorities.” There is, therefore, only Avcpass.
Calls kind
The delegation aims to strengthen the very regulatory powers (‘soft law’ ) exercised dall’Anticorruzione. Among them acquire a significant role-type calls. The goal is twofold: to avoid the phenomenon of the calls made to measure and reduce the dispute linked to erroneous interpretations of the rules. The Authority has already prepared some models, however, who are struggling to establish themselves for the lack of sanctions for institutions that deviate from the standards provided by ANAC. Now the delegation plans to give these acts “binding.”
Streamline Bureaucracy documentary charges paid by firms is one of the objectives leading the delegation. An attempt was made with the system set up by the old Avcpass AVCP and now taken over by ANAC, which will have to review its contents and mode of use.
Canton is the new man of the contracts. And has quickly become a central reference point in the season of the reform marked by the resurgence of the phenomena of corruption. The rating of business reputation revision dell’avvalimento the Public Works Committee of the Senate has adopted many of the suggestions of the former magistrate arrived. In the first months of activity Canton has been able to shake off the image of “inquisitor” that a little ‘hastily had been stuck on him, proving to be able to combine scrupulous respect of rules and concrete in the construction of the works, as evidenced by the case of commissioners (not just for the Expo and the Mose) and the recent “invention” of the collaborative supervision.
The Central purchasing bodies proxy addresses in several places the issue of central purchasing. They talk about it for months. Extensions and overlays standards linked to the operation “spending review” faced by the government in Monti then (most recently with the season Cottarelli) have not scratched the two key objectives of this maneuver. First, reduce spending centers to ensure greater control of the outputs. Second, they can count on adequate qualification administrations authorized to ban procurement (and maybe to manage the sites).
Unique The transposition of European directives on public procurement, concessions and services not provided an opportunity for review of Decree No. 163/2006 and the implementing regulation (Presidential Decree 207/2010). Compared to the assumptions of the first hour that included the ability to split the discipline, with separate codes for contracts and concessions, has chosen the path of the code unit for the entire matter. The other fundamental choice has been to predict the complete rewrite and not the simple adaptation of the code that will be repealed by the new rules.
Test
In addition to the race officials, the delegation includes the establishment of a national register specifically for the testers of the works entrusted to the formula of the general contractor. Clear the goal of ending the “traffic” of well-paid positions among civil servants. There is to say, if anything, that the interventions assigned to general contractor are now a rarity. So close is likely to involve a marginal, if not extinct, the market.
Fees
There are two committees that are working on the transposition of directives and therefore the reform of the procurement system. One has settled at Palazzo Chigi under the guidance of Antonella Manzione, Head of Department of Legal Affairs of the Presidency of the Council. The other to the Ministry of Infrastructure, according to the authority delegated to the Deputy Minister Nencini.
Concessions
The delegation expected in several places building measures forms of public-private partnership. An ad hoc chapter is then devoted to clarify that the new code will still predict a rewrite organic “matter of concessions, through the harmonization and simplification of existing legislation, as well as the provision of guidelines for the concessions specified in Section II of Directive 2014/23 / EU. “
Design contests
They become a principal tool to focus again on the project and to ensure the quality architecture in Italy. One of the new criteria of the basic text provides that these objectives are achieved, as well as with the limitation integrated procurement, “even through the medium of design contests.”
consultations
During the preparatory work of the new code delegation requires the government to collect the positions of the industry. Point 2 of the bill clarifies that the consultations will be to coordinate the Presidency of the Council of Ministers in consultation with the Ministry of Infrastructure. Consultations should address the “major categories of
public and private recipients of the new legislation.” Not only before performing consultazion the Government will also have to specify the “operating procedures” which will take place. Taking into account “international standards of participation in the processes of regulation and in view of the internal discipline of the analysis of the impact of regulation (AIR).”
Contractor General
It is one of the most expected. With the new basic text is forbidden “in public works contracts awarded by the formula of the general contractor, the allocation of duties of manager or project manager in the same general contractor.”
Checking the contracting
It combines the rules laid down in the general contractor. You have to avoid the cases in which the successful bidders in the hands holding the keys of the contract without public audits. For this there is provided a general strengthening of the control functions of the contracting authority on the execution of performance, “with particular reference to the powers of examination and intervention of charge of the proceedings.”
Corruption
According to an estimate attributed to the Court of Auditors, but repudiated by the president of Louis Giampaolino, the cost of corruption would amount to about 60 billion. The figure probably is not worth anything. But the phenomenon is riesploso in all its seriousness in these months, helping to focus attention on procurement reform and to speed up the approval process, first a little ‘sleepy.
Criteria reputational
Another innovation under discussion for years are the criteria of reputation. Will serve to make the mechanisms of business qualification less oriented to formal criteria and more attentive to the substance. In addition to sales and to the work done in recent years, so, you can also look at other elements related to the history of the company, as the number of contracts completed on time or the changes requested.
Débat public
The French public debate is a procedure that requires the involvement of local communities already in the planning and design of large strategic infrastructure. The idea is to arrange the works when they are designed to avoid problems later. In the text of the Senate there are “forms of public debate (on the model of the French debat public) of the local communities of the areas affected by the construction of major infrastructure projects that have an impact on the environment os
Decrees corrective
The delegation also contains a “safeguard clause” that will allow you to correct any distortions in the running or application difficulties resulting from the entry into force of the new code. The government will have a year to monitor the effects of the reforms and to propose corrective decrees delegated decree. Respecting though the same approval procedures and criteria established by the Parliament delegation.
Exceptions
The question of exceptions to the usual procedures, most often evoked both the new Minister of Infrastructure Graziano Delrio that the president Anac Raffaele Cantone, enters the procurement reform. An amendment of the speakers expressed the states’ prohibition of assignment of contracts through procedures derogate from the ordinary. ” The only exception may go to “individual cases related to civil defense emergencies arising from natural disasters, for which must be provided adequate control mechanisms and advertising next.” So, outside of natural disasters, only apply the ordinary procedures.
Guidelines
After two years of negotiations on the text proposed by the Commission, Parliament and the EU Council gave the go ahead to the new discipline of public contracts by approving a final three new European directives on public procurement (Directive 2014/24 / EU), concessions (Directive 2024/23 / EU) and excluded sectors (Directive 2014 / 25 / EU). The texts have been published in the Official Gazette of March 28, 2014. European Union have entered into force 20 days after, giving two years to transpose the EU member states.
Works management
It ends the era of controller-dependent controlled in major works. The delegation expressly provides that the duties of the general contractor can be counted still carry out the tasks of construction supervision, which normally would be granted to the contracting authority. Anomaly “tolerated” for years, now swept away by the investigations of the prosecutor of Florence on “system is pressing.”
Prohibition of gold plating
> It is the phrase with which synthesizes a concept present in the delegation since day one: the new rules will not be heavier than the minimum levels required by the EU regulation. In other words, we must adopt a code lightweight, without encumbrances not required.
Project Finance
Back in the proxy code to the idea to create an Agency for Public Private Partnerships, which was also assumed in the Document of Economics and Finance presented last year by the government. The idea was to strengthen the tasks currently performed by the Unit technical project financing established at the Presidency of the Council, including through the centralized management of calls for tender for the construction of public infrastructure with private capital. Still on the project financing is now provided for the purpose of strengthening the feasibility studies of the works with plans «it possible to lay competing projects with known financial coverage resulting from the verification of the levels of bankability of the work.” But the most strong concerns authorizations related to the work. To avoid the classic stop & amp; go, when the intervention involves individuals must ensure ‘also the acquisition of all necessary approvals, opinions and acts of assent, however denominated by the award stage. “
Building territorial
In the reform are guaranteed ‘criteria and procedures for evaluating bids reward against companies operating in its territory. ” In this way we try to protect businesses closer to the place of execution of the works. Although this provision could end up in the sights of Brussels with respect to the issue of protection of competition.
In house
Transparency must also enter into these races. The draft bill speaks of “the guarantee of adequate levels of publicity and transparency of procedures for public procurement and concessions between entities within the public sector (so-called in-house).”
Running The speakers light up a lens on the stage of execution of the works. The new powers of supervision and control in public procurement will affect not only the preparation phase of the competition and the choice of contractors, but also the runtime performance, from which depend on many of the problems highlighted in recent weeks by the facts news.
Surveys
The lights on by prosecutors in Florence on assignments for the great works that led to the resignation of the Minister Maurizio Lupi and even before the investigations Procurement Expo and Mose had a secondary role nell’accelarazione reform procurement. Plastically making clear how a system of rules farragionoso (more than 600 articles for a few paragraphs of migliaiio) would contribute to the underworld and make more complicated controls. For this, at least in intention, one of the central points of the reform should be the deforestation of the jungle rules.
Iter
procedure for particularly complex ‘approval with two steps in the Council of Ministers. The new code, in the form of a legislative decree delegate, will be adopted on a proposal of the President of the Council of Ministers and the Minister for Infrastructure and Transport, after consultation with the Ministers of Foreign Affairs and International Cooperation, Justice, Economy and finances. Must first obtain the opinion of the Joint Conference “which is pronounced within thirty days; after which date the decree is also adopted in the absence of that opinion. ” On the draft decree is also acquired also the opinion of the State Council (30 days) and the relevant parliamentary committees (40 days). Expiration of such term, the decree can be adopted in any case.
Lobby
The regulation of the lobby will be part of the new Code. The draft bill provides for the delegation transparency “in the possible participation of the holders of qualified interests in decision-making processes aimed at the programming and award of public contracts and concessions.”
In the local labor reform must include a provision to reward companies that “if awarded, are committed to the execution of the contract, to also use some labor or personnel at the local level.”
Maximum Drawdown
The delegation requires a drastic braking at the possibility of awarding tenders to the lowest bidder. Better: the possibility that the discount on the price provided by government is the only parameter for evaluating offers made by companies. Normally the award criterion must be the most economically advantageous (price other parameters such as improvements to the design, execution times, site organization, quality of materials etc.) “adjusting expressly the cases in which it is allowed to use only the criterion of the price or cost, taken as a criterion of the lowest price or the lowest bid auction ‘.
Number of items
The new Code must be light, to bring the Italian model with European best practices. The idea is not to exceed 250 items against 600 of the current system, with a view to simplification.
Occupation The basic text presented last week by the speakers already provided a ‘social clause’ aimed to ensure “the stability of employment of the staff employed” in the contract. Now that principle is further clarified by the new amendments of the speakers. Establishing that in cases where the cost of labor is equal to at least 50% of the contract need to ensure stability of employment and take “a reference for each product sector or activity, the collective national work that presents the best conditions for the workers and expressly excluding the use of the only criterion for the award of the price or cost, taken as a criterion of the lowest price or the maximum reduction of the auction. “
Economically more advantageous
The most economically advantageous tender for the award of public contracts, becomes the preferential criterion. The new procurement code, then, must be specifically stated the cases in which it is allowed to use “the sole criterion of the price or cost, taken as a criterion of the lowest price or the maximum reduction of the auction.” Thus, the general rule will be the most economically advantageous and exceptions, expressly regulated, will go to the lowest bidder.
Payments
You one of the issues that remain, so far, out of the delegation. The problem in the sub-contractors who, in a situation of liquidity crisis, have problems to cash payments by companies foster. Thus, the chain of companies specialized lobbying for years to get the requirement of direct payment to the subcontractor by the contracting authority, without mediation. At present, however, there is a specific policy governing the point.
PPP
Back in the proxy code also ‘ idea of creating an Agency for Public Private Partnerships, which was also assumed in the Document of Economics and Finance presented last year by the government. The idea is to strengthen the tasks currently performed by the Unit technical project financing established at the Presidency of the Council, including through the centralized management of calls for tender for the construction of public infrastructure with private capital.
Performance bond
The comprehensive guarantee of execution is an institution of Anglo-Saxon used much in the United States. Provides that in the event of bankruptcy or default of the holder of the contract there are at least two alternates who meet in the call, ready to take the field and finish the work. Since July 1, 2014, after a long series of postponements, the guarantee is mandatory for contracts integrated over 75 million and the works (now a rarity) entrusted to the general contractor. And it may be the work of only one running more than 100 million. The aim is clear: to ensure that contracting the work will come to the finish line no matter what happens in the pipeline, including failure of the subcontractor. With the new code this tool, which has never really convinced, will be severely limited.
Small Municipalities
are magazines, with another amendment , the rules of central purchasing of Commons not capital. Those up to 5 thousand inhabitants will have to move from one subject aggregator for credit over 150 thousand euro; between 5 thousand and 15 thousand inhabitants this roof goes up to 250 thousand euro; Finally, over 15 thousand people will be able to contract freely below the threshold of 350 thousand euro. It is a change that responds to the demands of small municipalities to have margins to contract competitions limited amount even without going to a central purchasing body.
SMEs
Special attention is devoted to the protection of SMEs. In favor of these is banned for “artificial aggregation of contracts.” The aim is thus to create smaller-sized contracts that could involve more companies in the market, increasing competition.
Project
With the objective of reduce overruns and variants in the pipeline delegation restores a strong role in the project, reducing the chances of subcontracted integrated and establishing a rule that you have to go in the race with a final design. So detailed and stable. Will reaffirmed (we’ll see that in forms) the importance of architectural quality with the relaunch of design contests.
Advertising
The revision of the regulation of the advertising of notices of race enters the delegation. We must make use of “primarily advertising tools concerned with data.” They are not, however, canceled the traditional form. An amendment provides “in all cases the publication of the same warnings and notices in at least two national newspapers and in at least two local newspapers, at the expense of the winner of the race.”
Qualification of companies
The company attestation will not be deleted. And this is already an acquisition very important, after the controversies and scandals that have swept away in recent months. On this point, the same Anac Raffaele Cantone has changed its orientation. The SOA, however, certainly will suffer a reform. In the new code will be included with the criteria that will try to make the qualification system of society marked by objective criteria. In particular, will be introduced so-called “reputational criteria”, who look to the history of the company, and the rating of legality.
Qualification of contracting
The draft bill paves the way for the introduction “of a specific system, managed by ANAC, the qualification of the same contracting, aimed to assess the actual technical and organizational capacity on the basis of objective parameters. “
Rating of legality
The rating of legality held by the Antitrust enters the procurement reform. return false; });
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