[PDF] ITALIAN PUBLIC CONTRACT CODE (LEGISLATIVE DECREE 50

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1 ITALIAN PUBLIC CONTRACT CODE (LEGISLATIVE DECREE 50/2016, as modified by legislative decree n. 57/2017)

Part I

Scope, Principles, Definitions and Exclusions

Title I

General Principles and Definitions

Art. 1

(Subject-matter and scope)

1. This Code establishes rules on public procurement contracts and concession contacts by

contracting authorities and contracting entities of services, supplies, works as well as on designs contests.

2. This Code definitions apply as well to the awarding of the following contracts as well:

(a) works contracts which are subsidized directly by contracting authorities by more than 50 % and the estimated value of which is equal to or greater than EUR 1 000 000, where those contracts involve one of the following activities: (i) civil engineering activities as listed in Annex I, (ii) building work for hospitals, facilities intended for sports, recreation and leisure, school and university buildings and buildings used for public purposes; (b) service contracts which are subsidized directly by contracting authorities by more than 50% and the estimated value of which is equal to or greater than the thresholds provided at Article 35 and which are connected to a works contract as referred to in point (a). (c) works contracts awarded by works concessionaires which are not contracting authorities (d) works contracts awarded by services concessionaires whereby they are strictly functional to the management of the service and the public works are transferred to the contracting authority. (e) works contracts to be performed by private entities holders of building permit or other title, which directly assume the execution of the planning works as total or partial deduction to the fee requested for the release of the building permit, as provided at Article 16, par. 2, decree of the President of the Republic 6 June 2001, n. 380 and Article 28, par. 5, law 17 August 1942, n. 1150, or they realized the work under a conventional framework. The authority which releases the building permit may establish that, with regard to the realization of the planning works, who is entitled to ask the release of the permit discloses to the authority itself, while applying for the permit, a technical and economical feasibility study of the works to be realized, with the due indication of the deadlines, and by attaching the scheme of the related procurement contract. The authority, on the basis of the technical and economical feasibility study runs a public tender according to the procedures provided at Article 60 or at Article 61. Objects of the contract, subject to acquisition of the final project at the offer phase, are the final design and the

realization of works. The offer shall distinguish the prices for the final design, for the realization

for the works and for occupational safety.

3. With regard to subjects at par. 2, letters a), b), d) and e), Article 21, as much as the planning of

public works is concerned, and Articles 70 and 113 do not apply. With regard to the execution 2 phase of the contacts only the provisions about the acceptance shall apply. Publicly held companies, even whereas not fully owned, which nonetheless are not bodies governed by public law, whose activity is the realization of works, or the production of goods and services which are not meant to be placed in the market under competition law, are subjected to the rules provided by the Regulation on local public services of general economic interest and, with regard to company law, by the Regulation on public held companies. To the same companies and to the

contracting entities which award works, services, supplies, of which at Article 3, par. 1, letter (e),

number 1, if, according to Article 28, rules of Part II, but for Title VI, Chapter I, shall apply, Article 21, as much as the planning of public works is concerned, and Articles 70 and 113 do not apply. With regard to the execution phase of the contacts only the provisions about the acceptance shall apply.

4. Contracting authorities that grant the subsidies of which at par. 2, letters (a) and (b) ensure the

compliance with the rules of the Code whereas they do not award the procurement contracts subsidized by themselves or when they award procurement contracts in the name and on behalf of other entities.

5. The measure ensuring the subsidy of which at par. 2, letters (a) and (b) must contain a

conditional clause that submits the subsidy to the recipient's compliance with the rules of the Code. The 50 per cent of the subsidies might be given only once the award of the procurement has been done, subject to verify by the granting entity that the award itself has been carried out in compliance with the Code, without prejudice to what provided by any law regulating the subsidies. The lack of compliance with the Code is a ground for the forfeiture of the subsidy.

6. The Code applies to the public contracts in the fields of defense and security, save for:

a) contracts falling within the scope of application of legislative decree 15 November 2011, n. 208;
b) which are not subjected to the legislative decree 15 November 2011, n. 208 thanks to Article 6 of the same decree.

7. The Minister for Foreign Affairs and for International Cooperation adopts, subject to an

agreement with ANAC, general directives for ruling the tender procedure for the selection of tenderers and execution of the contract to be performed abroad, with due account of the fundamental principles of the Code and of the procedures applied by the European Union and by the international organizations which Italy is part of. The application of the Code to the award procedure realized in Italy shall apply. Until the aforementioned general directives shall not be adopted, Article 216, par. 26 will apply.

8. Any references to nomenclatures in the context of public procurement and of the awarding of

concession contracts shall be made using the Common Procurement Vocabulary (CPV) of which at Article 3, par. 1, lett. tttt).

Art. 2

(State, Regions and Autonomous Provinces legislative competences)

1. This Code rules are adopted within the exercise of the State exclusive competence within the

3 fields of safeguard of competition, ordinary jurisdiction and in the other fields to which the specific contract could be brought back too.

2. The Regions with ordinary statutes exercise their functions within the fields of regional

competences according to Article 117 of the Constitution.

3. The Regions with special statures and the Autonomous Provinces of Trento and Bolzano

adapt their legislations according to the regulations provided within the statutes and the related implementing rules.

Art. 3

(Definitions)

1. For the purposes of this Directive, the following definitions apply:

(a) 'contracting authorities' means the State public administrations; the local public authorities; the other non-economic public authorities; the bodies governed by public law; the associations, the unions, the consortia, whatever called, formed by one or more such authorities (b) 'central government authorities' means the contracting authorities listed in Annex III and their successor entities; (c) 'sub-central contracting authorities' means all contracting authorities which are not central government authorities; (d) 'bodies governed by public law' any body, even of corporate law, whose non-mandatory list is contained in Annex IV:

1) it is established for the specific purpose of meeting needs in the general interest, not having an

industrial or commercial character; (2) it has legal personality;

(3) its activity is financed, for the most part, by the State, by other public local authorities, or by

other bodies governed by public law; or it is subject to management supervision by those authorities or bodies; or it has an administrative, managerial or supervisory board, more than half of whose members are appointed by the State, or local public authorities, or by other bodies governed by public law; (e) 'contracting entities', for the purposes of the rules:

1) Part II of the Code, the entities which:

1.1. they are contracting authorities or publicly held companies which carry out an activity of

which at Articles 115-121;

1.2. even if they are not contracting authorities nor publicly held companies, they carry out one

or more of those activities listed at Articles 115-121 and they work thanks to special or exclusive rights granted by the competent authority:

2) Part III of the Code, the entities which carry out an activity of which at Annex II and they

award a concession for the realization of one of those activity, such as:

2.1 the State administrations, the local public authorities, the bodies governed by public law, the

associations, the unions, the consortia, whatever called, formed by one or more such authorities;

2.2 the publicly held companies of which at letter t) of this paragraph;

2.3 other entities from those ones indicated at points 2.1 and 2.2 but working thanks to special or

exclusive rights for the purposes of one or more of those activities of which at Annex II. The entities which are entitled of special or exclusive rights though a procedure wherein an adequate 4 publicity has been ensured and the entitlement of these rights is founded on objective criteria are not considered as contracting entities for the purposes of the point 2.3; (f) 'contacting subjects' only for the purposes of Parts IV and V are the contracting authorities of which at letter a), the contracting entities of which at letter e) and the other public or private subjects financed of which at the aforementioned Parts IV and V; (g) 'other contracting subjects', the private subjects which have to comply with the rules of the Code; (h) 'joint venture', the associations among two or more entities, for the purpose of the implementation of a project or a series of projects or of certain agreements of commercial or financial kind; (i) 'central purchasing body', a contracting authority or a contracting entity providing centralized purchasing activities and, possibly, ancillary purchasing activities; (l) 'centralized purchasing activities' means activities conducted on a permanent basis, in one of the following forms: (1) the acquisition of supplies and/or services intended for contracting authorities, (2) the award of public contracts or the conclusion of framework agreements for works, supplies or services intended for contracting authorities; (m) 'ancillary purchasing activities' means activities consisting in the provision of support to purchasing activities, in particular in the following forms: (1) technical infrastructure enabling contracting authorities to award public contracts or to conclude framework agreements for works, supplies or services; (2) advice on the conduct or design of public procurement procedures; (3) preparation of procurement in the name and on behalf of the contracting authority concerned; (4) management of procurement in the name and on behalf and for the account of the contracting authority concerned; (n) 'aggregator body', the central purchasing bodies in the list established according to Article 9, par. 1, law-decree 24 April 2014, n. 66, converted, with amendments, in the law 23 June 2014, n. 89;

(o) 'contracting body', the contracting authorities of which at letter a), the contracting entities of

which at letter e), the contracting subjects of which at letter f) and the other contracting subjects

of which at letter g); (p) 'economic operator', any natural or legal person, public entity, group of such persons and/or entities, including any temporary association of undertakings, entity without legal personality, including the European Economic Interest Grouping (EEIG), established according to the legislative decree 23 July 1991, n. 240, which offers the execution of works and/or a work, the supply of products or the provision of services on the market; (q) 'concessionaire' , an economic operator which has been awarded a concession; (r) 'promoter', an economic operator which participates to a public-private partnership; (s) 'procurement service provider', a public or private body which offers ancillary purchasing activities on the market for ensuring the development of the purchasing activities of the subjects at letters a), b), c), d) and e); (t) 'publicly held companies', the companies on which contracting authorities may exercise, directly or indirectly, a dominant influence because they own the, or because they have a financial participation in them, or thanks to rules which govern them. The dominant influence is presumed whenever the contracting authorities, directly or indirectly, alternatively or cumulatively: 5

1) they have the majority of the subscribed capital;

2) they control the majority of the votes given by the shared issues;

3) they can appoint the majority of the members of the board of directors, of the governing

board or of the supervisory body; (u) 'temporary association of undertakings', an association of undertakings, suppliers, or service providers, established, even through a private agreement, for the purpose of participating to a procurement procedure of a specific public contract, through the submission of a single offer; (v) 'consortia', the consortia established by the legal order, with or without legal personality; (z) 'affiliated undertaking', any undertaking whose annual accounts are consolidated with the contracting authority ones, according to Article 25 and subsequent of legislative decree 9 April

1991, n. 127 and following amendments. In case of entities to which the aforementioned

legislative decree does not apply, alternatively, 'affiliated undertaking means any undertaking:

1) on which the contracting authority may exercise, directly or indirectly, a dominant influence;

or which may exercise a dominant influence on the contracting authority;

2) that, as the contracting authority, is subjected to the dominant influence of another

undertaking because of ownership assets, or because of financial participation or because of internal rules; aa) 'micro, small and medium enterprise', enterprises as defined in Commission Recommendation 2003/361/EC of 6 May 2003. Particularly, medium enterprises are those ones with less of 250 employees and an annual turnover not greater then 50 million EUR, or a global annual budget not greater than 43 million EUR; small enterprises are those ones with less of 50 employees and an annual turnover or a global annual budget not greater then 10 million EUR; micro enterprises are those one with less of 10 employees and an annual turnover of a global annual budget not greater then 2 million EUR. bb) 'candidate', an economic operator that has sought an invitation or has been invited to take part in a restricted procedure, in a competitive procedure with negotiation, in a negotiated procedure without prior publication, in a competitive dialogue, in an innovation partnership or in a concession procedure; cc) 'tenderer', an economic operator that has submitted a tender; dd) 'contracts' or 'public contracts', procurement or concession contracts for pecuniary interest concluded in writing between one or more economic operators and one or more contracting authorities and having as their object the execution of works, the supply of products or the provision of services; ee) 'contracts of European relevance', public contracts with a value net of value-added tax (VAT) estimated to be equal to or greater than the thresholds at Article 35 and which do not fall within the excluded contracts; ff) 'under-threshold contracts', public contracts with a value net of value-added tax (VAT) estimated to be inferior to the thresholds at Article 35; gg) 'ordinary sectors', the sectors of public contracts, other than water, energy, transport and postal services sectors, geographical exploitation, as regulated by Part II of Code, wherein the contracting authorities work; hh) 'special sectors', sector of public contracts of water, energy, transport and postal services sectors, geographical exploitation, as regulated by Part II of Code, wherein the contracting authorities work; ii) 'public procurement', procurement contracts for pecuniary interest concluded in writing between one or more economic operators and one or more contracting authorities and having as their object the execution of works, the supply of products or the provision of services; 6 ll) 'public procurement of works', contracts concluded in writing having as their object one of the following:

1) the execution, or both the design and execution, of works related to one of the activities

within the meaning of Annex I;

2) the execution, or both the design and execution, of a work;

3) the realization, by whatever means, of a work corresponding to the requirements specified by

the contracting authority exercising a decisive influence on the type or design of the work; mm) 'written' or 'in writing', any expression consisting of words or figures which can be read, reproduced and subsequently communicated, including information transmitted and stored by electronically means; nn) 'works' of which at Annex I, the building, demolition, recovery, urban and construction renovation, restoration, maintenance of buildings; oo) 'complex works' works which overcomes the threshold of 15 million EUR and which are characterized by particular complexity due to the typology of the works, to the use of innovative materials and items, to the execution in areas which produce logistic difficulties or particular geotechnical, hydraulic or environmental criticalities; oo-bis) 'works of prevalent category' the category of works, general or specific, of greater value among the categories constituting the work and listed in the tender documents; oo-ter) 'work of deductible category', the category of works, identified by the procuring authority within the tender documents, which does not belong to the prevalent category and, in any case, of value greater than 10 percent of the total value of the work, or of value greater than

150.000 EUR or belonging to the category of which at Article 89, par. 11;

oo-quarter) 'ordinary maintenance', without prejudice to what provided by the President of Republic decree 6 June 2001, n. 380 and by the legislative decree 22 January 2004, n. 42, the works of reparation, renovation, and substitution needed for eliminating the decay of manufactures and related pertinences, for the purpose of conserving the status and the usability of the related works, by keeping them in good conditions of functioning and security, without depriving them of their solidity, safeguarding the value of the good and its functionality; oo-quinquies) 'extraordinary maintenance', without prejudice to what provided by the President of Republic decree 6 June 2001, n. 380 and by the legislative decree 22 January 2004, n. 42, the works and the needed modification for renovating and substituting parts even structural of manufactures and related pertinences, for fixing the components, the items and the worksquotesdbs_dbs12.pdfusesText_18

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