Significant Changes to the Italian 2023 Public Procurement Code Introduced by the Corrective Decree: A Focus on Digitalisation

Legislative Decree No. 209 of December 31, 2024, titled “Supplementary and Corrective Provisions to the Public Procurement Code” (the Corrective Decree), has introduced substantial changes to the 2023 Public Procurement Code (the Code). The Corrective Decree addresses ten priority issues, amending or replacing over 80 provisions and adding three new articles and annexes:

• Fair compensation: ensuring fair compensation in engineering and architecture service contracts.
• Labour protections: strengthening protections for workers involved in public contracts.
• Digitalisation: promoting the digitalisation of procedures and documents.
• Qualification of Contracting Authorities: improving the qualification of Contracting Authorities to ensure greater efficiency.
• Price revision: adjusting prices to ensure flexibility and transparency.
• Consortia: better regulation of consortia to encourage the participation of companies.
• Protection of Small and Medium Enterprises (SMEs): promoting the participation of SMEs in public procurement.
• Execution phase of the procurement contract: improving the management and execution of procurement contracts.
• Public-private partnerships (PPP): encouraging collaboration between public and private sectors.
• Technical advisory boards: establishing boards to resolve technical disputes during contract execution.

Digitalisation emerges as one of the primary macro-themes. Over a year since the Code’s initial implementation, it has become essential to simplify and clarify certain rules to ensure the proper functioning of the e-procurement system.

The Corrective Decree updates five of the eighteen articles on digitalisation, considering Part II of Book I of the Code and Article 43, which focuses on Building Information Modelling (BIM), an approach involving the generation and management of digital representations of the physical and functional characteristics of buildings or other physical assets and facilities. Among the most notable digitalisation reforms is the enhancement of the Virtual Economic Operator’s Folder (FVOE). A new provision, paragraph 3-bis in Article 99, allows the Contracting Authority to proceed with awards based on the economic operator’s self-certification if there are issues with the FVOE during the verification process.

Significant changes also include consent to the processing of personal data, which can now be transmitted directly through the FVOE (Article 35, paragraph 5-bis). Additionally, Article 35, paragraph 7, now empowers any contracting authority, alongside the Italian Anticorruption Authority (ANAC) supervising the public procurement sector, to report omissions of information or activities necessary for data interoperability to the Agency for Digital Italy (AgID), supporting the exercise of sanctioning powers provided by the Digital Administration Code.

Interoperability is crucial for achieving effective digitalisation throughout the public procurement cycle. The amendments to the rules for BIM use are also noteworthy, as the revised provisions aim to elevate the standards for mandatory BIM methodology. The minimum project value requiring BIM is doubled from one to two million euros, with a separate threshold of 5.538 million euros for interventions on historic and artistic heritage buildings.

Other significant measures introduced by the Corrective Decree include:

• Regulation of Price Revision Clauses: Article 60 of the Code has been amended, and a new Annex II.2-bis oversees the implementation of revision provisions.
• Enforcement of Labour Protections: Article 11 of the Code addresses the identification of the applicable National Collective Bargaining Agreement (NCBA), ensuring equal protection and participation of operators who do not use the Contracting Authority’s indicated contract.
• Access for Small and Medium Enterprises (SMEs): The incentive to split tenders into lots is reinforced and a 20 percent quota of subcontracting is reserved for SMEs. Such quota can be waived only for specific, justified reasons.
• Reduction of Standstill Period: The standstill period for contracts above EU thresholds is reduced from 35 to 32 days.