New Procurement Code: A Bet on TrustTHE APPROACH OF THE TEXT APPROVED BY THE ITALIAN PARLIAMENT REVOLUTIONIZES THE PERSPECTIVE, PUTTING ASIDE THE PRINCIPLE OF SUSPICION IN FAVOR OF GREATER FREEDOM OF INITIATIVE AND SELFRESPONSIBILITY OF PUBLIC ADMINISTRATIONS. THE AIM IS TO RELAUNCH THE COUNTRY THROUGH THE PNRR, AS MIRIAM ALLENA EXPLAINS IN THIS INTERVIEW
by Andrea Celauro
Translated by Richard Greenslade
The date is marked: March 31. By that day, Parliament will have to proceed with the final approval of the new Procurement Code. By revolutionizing the viewpoint based on the principle of the result and the principle of trust in the legitimate action of public officials, this document promises to unlock contracts and, as part of the PNRR projects, give a strong impetus to the relaunch of the country. There was no lack of criticism of the text being approved, including those of the ANAC, the Anti-Corruption Authority. However, according to Miriam Allena, associate professor of administrative law and coordinator of Bocconi's Public Procurement and Sustainability Observatory, the new perspective of the Code could make the difference in restarting the procurement engine.
Right from its first two articles, which focus on the principle of results and trust in public administration, the new Code declares a precise change of course with respect to the past.
Those are the two biggest innovations, because they immediately mark the difference compared to the previous legislation. In the past, the underlying principle has always been that of mistrust of public officials and economic operators. If we leave the officials free to do what they want, they will give the contract to their friends. To avoid this, a system of norms and increasingly detailed standards has been built to which all actors must adapt, but which has weighed down the whole mechanism, making it cumbersome and inefficient. A mechanism which, in its extreme formalism in the name of transparency and respect for competition – fundamental elements, I know – has resulted in continuous litigation before the administrative courts, causing the progressive slowdown of tenders. With the new Code, the legislators make a different bet: We want to give confidence to the public administration and private companies. We are therefore moving from the principle of suspicion to that of trust, with the hope of making the procurement system more fluid.
The Anti-Corruption Authority, however, has raised doubts about some points of the new text, including the issue of preventive controls and that of integrated procurement and the general contractor. What do you think?
On the subject of controls, perhaps, yes, it would be better to keep them. With regard to the subject of contracts and the general contractor, both of which are based on the idea that a single company deals with the design and implementation of the works, let us return to the previous discussion. This is also a gamble. It is clear that for integrated procurement the risk is that the public administrationhas less control over the project – think for example of the design variants and the higher costs that the company can say it has to bear compared to the original project – but integrated procurement, however risky, is a more efficient process. And, at this stage, perhaps a little risk is needed.
What impact could the new Code have in terms of PNRR?
It can be an important flywheel. When it comes to procurement, at European level we are talking about 16% of the Union's GDP. It is therefore clear that even for Italy, relaunching procurement is equivalent to relaunching the country. The fact is that the Code must be approved by 31 March in order to comply with the commitments of the National Plan, so at this stage it is important to raise awareness on the subject. Subsequently, adequate training, both technical and ethical, of public administration officials will be needed. Because a good law is the prerequisite, but alone is not enough, we need a system around it that allows you to make everything work effectively. A support service, organized by the Presidency of the Council and ANAC, has been designed to support public administrations in the first year of activity of the Code.
You mentioned Europe. How does this new procurement legislation compare to that of other countries?
In Germany (and in the past in England) they have implemented the Procurement Directives using private law, with the idea that public regulation burdens the procurement machine. It awards contracts under rules which, without prejudice to EU obligations of transparency and impartiality, are essentially those of private law and disputes are resolved before the ordinary courts. I remain convinced that a publicist procedure is in any case a guarantee: when a public authority is making a contract, it is exercising economic power, which must be in the interests of the community. This power must therefore be contained and controlled to avoid excesses, but the idea is to avoid rules that cancel effectiveness or initiative. The accompanying report sets out the objective of the text as "To promote greater freedom of initiative and self-responsibility of contracting authorities," i.e. public administrations. Another example in this direction is that other European states no longer have the prohibition on the assignment of the contracts that in Italy still persists, except in the case of a business moving or similar corporate operations. The result is great confusion that can also lead to elusive choices involving maneuvers more in name than in substance and with foreign operators who, not being used to these limitations (that is, the prohibition of transferring contracts outside of corporate operations), are sometimes forced to pass up investments in our country.