That said, a recent ruling by the Council of State Section V of 17 May 2024, no. 4435 has very clearly stated the limits of the Sole Project Manager, despite the broad powers attributed by the legislator.
First of all, it is important to remember that the Project Manager – according to the intentions of the legislator of the reform – is a project manager, an expression of knowledge and skills and for the Public Administration this implies the burden of identifying an employee with multi-sectoral skills, with a great ability to manage human and instrumental resources.
The duties of the Project Manager are defined by Annex I.2 of Legislative Decree no. 36/2023. He carries out his duties with the support of the contracting authority’s employees and is responsible to coordinate the implementation process of the public intervention in compliance with timeframes, the budgeted costs, the required quality, and the scheduled maintenance. It is possible to divide the tasks of the Project Manager according to the stages of the tender contract and the tasks may be: (i) common to all contracts and phases; (ii) specific to the assignment phase; (iii) specific to the execution phase.
With regard to the Project Manager’s tasks common to all phases of the tender award, the following are among the most important: i) drafts proposals and provides data and information to prepare the three-year programme of public works as well as the three-year programme for the purchase of goods and which services to be adopted; ii) ascertain the free availability of the necessary areas and buildings and, in the case of works, the urban regularity of the public intervention or promote the initiation of urban planning variation procedures; (iii) propose the conclusion of an agreement to the contracting authority when integrated and coordinated action by different administrations is necessary; iv) proposes the convening, or where competent, calls for a conference, when necessary or useful for the acquisition of agreements, opinions, concessions, authorizations, permits, licenses, clearances, consent, however called; (v) verify projects for works of less than one million euros and ensure compliance with the design verification procedure pursuant to Article 42 of the Code; vii) sign the validation of the project on which the tender is based together with the person in charge of the design phase, if appointed pursuant to Article 15, paragraph 4, of the Code; (viii) ascertain and certify the conditions that require that the contract is not divided into lots pursuant to Article 58(2) of the Code; ix) decide on the systems for awarding works, services and supplies, the type of contract to be concluded, the award criterion to be adopted; (x) request the contracting authority to appoint the selection board in the case of an award based on the criterion of the most economically advantageous tender pursuant to Article 93 of the Code.
Despite the role that the Project Manager now enjoys, the Council of State with a recent ruling (Sec. V of 17 May 2024, no. 4435) has intervened to clarify the extent of the limits beyond which one cannot operate: i.e. the power of evaluation of the tender commission.
In this perspective, the Judge points out that while it is true that the Project Manager can exercise a legitimate power of verification on the regularity of the procedure, he cannot replace his own assessments with respect to those of the tender commission: in this case he could only ask for clarifications and in-depth analysis from the same commission.
To confirm this, Article 7 of Annex I.2 of Legislative Decree No. 36 of 2023 provides, that yes the Project Manager “provides for exclusions from tenders” [letter d], but at the same time confirms that the Project Manager: “in the case of a procedure that provides for the award of the contract with the criterion of the most economically advantageous offer, may carry out all activities that do not involve the exercise of evaluation powers, which shall be the responsibility of the Selection Board” [point (e]‘.
Therefore, it is confirmed, even in the new Code of Contracts, that in the case of a contract awarded with the most economically advantageous bid method, “the exercise of evaluation powers” is the responsibility of the tender commission and not of the Project Manager.
In the same way, the power of the Project Manager to give impetus and draft clarifications to the tender committee, in case of doubts, while in the old Code of Contracts was expressly provided for under art. 33 (where “controls” by the contracting authority were provided for between the provisional and final award), in the new code (where the control phase is subsequent to the final award) there is now a trace – at least implicitly – both in art. 17, paragraph 5 (where it is pointed out that the competent body, i.e. the Project Manager if he has the powers, orders the final award “if he considers it legitimate and in accordance with the public interest”: which means that the Project Manager, in case of doubt, can always request additional intervention by the tender commission); and in art. 18, paragraph 2 (when it is stated that between the final award and the stipulation of the contract, the administration can always exercise “powers of self-protection”: which means that, even in this case, if the Project Manager’s doubts arise after the final award, these can be resolved by requesting clarification from the tender commission within 60 days between the award and the stipulation). Therefore, in a nutshell the Project Manager: (a) may exercise control over the regularity of the procedure; b) may never replace his own assessments for those of the tender committee; (c) where appropriate, may only request clarification and further information from the commission; (d) this is without prejudice to the power to intervene only in the event that the commission has made an assessment which is manifestly illogical or manifestly erroneous.
DISCLAIMER: This article merely provides general information and does not constitute legal advice of any kind from Macchi di Cellere Gangemi which assumes no liability whatsoever for the content and correctness of the newsletter. The author or your contact in the firm will be happy to answer any questions you may have.