public procurement

The article highlights how public contracts are a crucial variable for the future of the government administration but at the same time represent a great challenge due to their complexity of the subject and the difficulty of in regulating them it in a simple yet effective way. The text article focuses on the many interests that the public administration has to consider when awarding contracts and how the new procurement Aact tries to combine a more streamlined discipline approach with the pursuit of the objectives of legality and transparency. The difficulty of achieving this goal can be seen is testified byin the recent experience of the UK legal system, which after Brexit is in the process of adopting a reform of public contract law that, despite the declared political intentions, still has many aspects in common with European and continental law.

This article analyses the new text of the Public Contracts Code with reference to the principles of sustainable development and environmental protection, neither of which are expressly mentioned among the new provisions. This examination provides an opportunity to reconstruct, according to Eu and national law, the role of the contracting authorities in pursuing environmental sustainability through public procurement. The approach followed in the new Code seems to be in line with the previous mandatory-rigid approach. Nevertheless, according to the principle of trust, corrective “functional” measures can be adopted to ensure that the processes of public procurement minimize damage to the environment and foster innovation.

The paper analyses how the “culture of suspicion” hinders the contractual activity of public administration. The “culture of suspicion” consists in the perception that every negotiation procedure is the harbinger of crimes and/or “maladministration”. The effects of this “culture of suspicion” consist of immobilism and inertia, since they inhibit the full recourse to discretionary and efficient actions, so that public officials avoid choices which can be risky in terms of penal, civil and administrative liability. In this context, the idea of contracts awarded by central purchasing bodies (contracting authorities) can play a crucial role. This is because the attribution to a single body of the competence to buy goods and services on the market, in addition to achieving positive “economies of scale”, can also increase the professionalism of the public officials operating within the contracting authorities and promote the transparency of tendering procedures. The paper focuses also on a critical analysis of the current regulatory framework, both at the national and EU level, trying to evaluate and propose necessary reforms and improvements.

Challenges arising from the complex system of reforms put in place by Italy, as a response to the pandemic, bring into question the current role played by the National Anti-Corruption Authority (ANAC) in the field of Public Procurement. This is especially true in light of the provisions of PNRR, the Public Contracts Code and the Enabling Law 78/2022. This paper critically reflects on the role of the ANAC, highlighting the evolution of ANAC's role in time of innovation, with particular reference to the qualifications of contracting authorities.

The present study aims to retrace the digitalization process of the public procurement starting from the previsions of the legislative decree n. 50/2016 to Public Procurement digitalization decree n. 148/2021, embraced with over four years delay compared with the previsions. For this purpose, we face the extremely wide jurisprudential production in matter of telematic tendering procedures. Namely, the decree is inserted in a context in which the jurisprudence has extensively addressed the issues related to the digitalization of the tendering procedures, attempting to make this heavy jurisprudential stratification, not devoid of inconsistencies and relevant developments.

The role of innovative procurement as a sustainability tool. The paper analyses the relationship between sustainable development and public procurement system from a juridical perspective. After having examined the application of the “Sustainable Public Procurement” strategy in so-called “traditional” procurement, the study explores the sustainability benefits that can be derived from the use of so-called “innovative” procurement by contracting administrations.

Article 80, paragraph 5, letter c) of the Code of Public Contracts provides for exclusion from participation of economic operators who have been convicted of serious professional misconduct affecting their integrity or reliability. The rationale for this prevision is «the need», of the public administration, «to ensure the reliability of those who propose themselves as contractors» (Council of State, decision no.1412, of April 11, 2016) through an evaluation process to determine their integrity. This provision has been the subject of a recent decision by the Regional Administrative Court for Sardinia: no. 646 of October 3, 2022. That decision focused on the discretion left by this provision – at the point where it provides for the exclusion of the economic operator for serious professional misconduct on the basis of any means considered by the Contracting Authority as adequate. The decision has clarified how this evaluation presupposes a specific reasoning based on two levels: one objective and one relative, which considers both the gravity of the professional misconduct committed by the economic operator, and the prejudice that it may cause to the specific contract in question.