Public contracts

Following an examination of the principles governing public contracts and their hierarchy as codified in Legislative Decree 36/2023, the author focuses on the relationship between the public administration's liability and the good faith principle, examining the legal implications of the former on the latter. Specifically, it is stated that by broadening the range of legal problems that can be resolved in connection with public procurement, Article 5 c. 2 of the new Code keeps the process of "civilising" administrative law going. This procedure, however, may hit a roadblock in the form of c. 3, which designates as "culpable" the reliance that was fostered in the face of a "easily detectable" illegitimacy.

The paper offers a quick review of the Project Manager provided for by the new Code of public contracts of March 31, 2023, and highlights the main features of this central figure in the context of public procurement procedures by comparing it with the already existing Project Manager drawn by the “old” 2016 Code.

This study delves into the concept of maintaining a balanced relationship in long-term contracts between public and private law, specifically in the context of procurement and concession contracts. The main objective of the paper is to explore the challenges related to unforeseen circumstances and contract renegotiation, while analyzing the clauses for price revision and contractual amendments outlined in legislative decree n. 36/2023.

The civil service in Germany encompasses two systems that differ significantly in principle but are not so dissimilar in practice: the two-tier system comprises civil servants (Beamte) and public employees (Tarifbeschäftigte). Civil servants predominantly occupy higher positions within the system. Their legal status has been defined by a series of laws enacted at both the federal and State (Länder) levels. Throughout this process, legislators have been constrained by constitutional provisions mandating adherence to traditional structures. Nonetheless, there have been ongoing developments and discussions regarding potential reforms.

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 evolution of the political position of the civil service in Poland, against the background of the construction of the civil service recognised by European doctrine. The paper presents the first comprehensive statutory regulation from 1922, with an already mature structure, to which all subsequent democratic regulations referred, sometimes polemically. The second part first shows the destruction after 1950 of the then so professional civil service, combined with the introduction - by force - again of Russian models, including a poorly paid administration, executors of decisions made in a huge party apparatus. The reconstruction of the civil service could not take place until after 1989, and was done under the strong influence of French doctrine and practice, including an attempt to create a dedicated school - the National School of Public Administration. The conclusion shows that the regulation currently in force, which requires revision, lowers employment standards in the civil service, breaks with the principle of competitive and open recruitment for senior positions and undermines the principle of neutrality.

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.

Public works constitute one of the main objects of ordinary urban planning and building regulations. However, since the 1970s, laws have been gradually introduced with the effect of derogating either from the provisions of the general land use plan or from the general discipline on authorization procedures to build. The decree-laws n. 77/2021 and n. 36/2022 have continued this trend with reference to projects necessary to achieve the strategic objectives of the European Union for the country's ecological and energy transition  included in the National Recovery and Resilience Plan (PNRR) and the Integrated National Plan for Energy and Climate (PNIEC). This paper explains the causes of this substantial "deplanning" of public works  the special regimes identified by the consolidated text on construction.

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.