With the entry into force of D.Lgs 163/2006, called “Public Contracts Code”, the entire legislation on public contracting has been brought together into a single legislative text. The path of revision and rationalisation of the matter by the legislator began in 2001, continuing with the modification of the Merloni Law through Law no. 166/01, and arrived in 2006 at the drafting of the consolidated text.
To date the Code, despite its short life, has already undergone substantial and significant corrective interventions through D.L. 12 May 2006 no. 173, Legislative Decree 26 January 2007 no. 6, Legislative Decree 31.07.2007 no. 113, and most recently through Legislative Decree 11 September 2008 no. 152.
The continuous and necessary corrective intervention has led, among the operators of the sector, to a deep confusion stemming from the correction, repeal and re-presentation of the same institutions just a few months apart. Even the case law on the matter, at this time, cannot be said to be settled, as it must contend with continuous changes of direction, specifications and revisions of the rules included in the code. The “Public tenders” section therefore aims to make clearer, for economic operators, some elements deemed fundamental for a correct participation in the tender, reducing the risk of exclusion due to lack of the necessary requirements.
The types of contractor selection procedures and the EU threshold
For the award of a public contract, administrations may use different contractor selection systems, all indicated in the “Code” and governed by their own particular discipline; they are:
- open procedures
- restricted procedures
- negotiated procedures
- competitive dialogue
- the dynamic acquisition system
- the framework agreement
- in-house acquisition
The administration, in any case, is not entirely free in the choice of the selection procedure; it is constrained by the amount of the contracts to be concluded: its choice is in fact subordinate to whether or not the EU threshold is exceeded.
Such threshold has been established with EU regulation 1422/2007, which provides that for contracts whose object is works, the amount is equal to 5,150,000 euros (replacing the previous 5,278,000 euros).
For services and supplies, however, the threshold has gone from 137,000 euros to 133,000 euros for contracts entered into by central State administrations, and from 211,000 euros to 206,000 euros for contracts entered into by other parties subject to the EU directives.
Attention is drawn to the fact that, since this is a modification introduced by regulation, it is directly applicable in each of the Member States (art. 249, paragraph 2, of the Treaty). The regulation, in fact, by its nature is intended to produce its effects without the need for a formal legislative intervention.
For these reasons, the provisions of the Public Contracts Code that establish the amounts of thresholds for contracts of EU relevance are to be understood as automatically modified according to the amounts indicated above.
Below are the details of the procedures usable based on amount.
Awarding of services above threshold
- Open procedure
- Restricted procedure
- Negotiated procedure with prior publication of a tender notice
- Negotiated procedure without prior publication of a tender notice
- Competitive dialogue
- Framework agreement
- Dynamic acquisition system
Awarding of services below threshold
- Open procedure
- Restricted procedure
- Negotiated procedure with prior publication of a tender notice
- Negotiated procedure without prior publication of a tender notice
- Competitive dialogue
- In-house acquisition
The EU threshold also affects the publicity discipline and the speed of contractor selection. Indeed, articles 122 (for works) and 124 (for services and supplies) of the code provide that the obligations of publicity and supranational communication do not apply for contracts with amounts below the threshold, and that the deadlines for receipt of applications and offers are shortened, derogating from what is provided by art. 70.
The Code, therefore, by allowing the application of a particular discipline in the case of below-threshold amounts and balancing the criteria of transparency and publicity with those of cost-effectiveness, efficiency and effectiveness, allows the administration to procure goods and services, or the awarding of works, in faster and more flexible terms.