Among the more important innovations of the new Procurement Code is first and foremost, the “crystallization” of new principles intended to ensure the achievement of the result, that is the awarding of the public contract, by the administration.
Legislative Decree No. 36/2023 that constitutes the new Procurement Code allocates a general part (Part I of Book I) that is very important for the codification of the principles that govern the entire matter of public contracts.
This is an important innovation compared to the previous code, which merely reported the general principles of administrative action of constitutional or unitary European derivation and, substantially, made a dynamic reference to those contained in Law No. 241/1990.
The new Code, on the other hand, introduces a series of principles in the sector’s regulations, which, according to the Legislator, should be endowed with a precise operational value, with the explicit, dual objective:
(a) to clarify the objectives underlying the adoption of this new legislative act for operators and interpreters;
(b) and enable room for discretion for contracting authorities that are thus prompted to consider these principles as guidance criteria and motivational supports for the identification of the rules to be actually followed throughout their administrative activities.
Therefore, the principles applicable to procurement procedures are listed from Article 1 to Article 12, considering the first three key principles (1) outcome, (2) trust, and (3) market access, as criteria for interpreting and applying the provisions of the Code:
– the principle of outcome, calls for maximum timeliness and the best possible relationship between quality and price, while respecting the principles of legality, transparency and competition;
– the principle of trust, closely related to the outcome, evokes “mutual trust in the legitimate, transparent and correct action of the administration, its officials and economic operators.”
– in addition, contracting authorities and awarding entities must facilitate market access for economic operators. This principle of market access is related to the principles of competition, impartiality, non-discrimination, publicity, transparency and proportionality.
Thus the Legislator felt the need to give form and substance to principles that are suitable in the field of public contracts, to implement the constitutional principle of the public administration’s good performance under Article 97 of the Constitution, clearly believing that given the current historical phase it was necessary to direct and urge public administrations to take it into greater account, encouraging them – during their administrative discretion – to give privilege to the result over the procedural autonomy understood as a mere “fulfillment.”
For this reason, it is believed, that among the most innovative aspects of the new code, the fundamental role is undertaken precisely by the illustration of these principles, which – in terms of scope – is one of the most innovative and relevant aspects of the new Procurement Code. These principles, as has been correctly pointed out by case-law, allow the proceeding administration to adopt a new modus operandi, a new cultural approach, according to which the regulation of the awarding of contracts should no longer be based on (and heavily conditioned by) compliance with formal legality, through meticulous constraints that can feed the so-called officials’ “fear of signature”, hindering the efficient development of procedures, but rather on the principle of the centrality of the result of administrative action, which is ultimately directed at awarding the public contract.
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