September 20, 2019

Public procurement: the issues of the Law Decree no. 32, 18th April 2019 – the so-called “Sblocca Cantieri” Decree

by Martina Favini in Deepening

The Italian Public Procurement Code still lacks thirty implementing decrees, not including the much anticipated “new” Regulation. Some of them are essential as they are related to the reform introduced by the Directives no. 2014/24/UE and no. 2014/25/UE. They are also fundamental for the public procurement market to be able to promote the development of the Italian industrial policy.
The most crucial implementing decrees, not yet adopted, concern the purchasing bodies, the classification of the procuring entities and the classification of the enterprises in the construction sector.
The Law Decree no. 32/2019 (so-called “Sblocca Cantieri”) could serve as an opportunity for a rethink from the scientific and operational point of view.
Unfortunately, the Government chose to overlap new rules over the old ones. Other countries, such as Germany, promoted a strategic and principle-based regulation. The Italian legal system is often characterized by the proliferation of laws and the excessive amounts of rules which impose an unnecessary compliance burden on businesses and citizens. This, essentially, for political reasons. Politics in fact avail of new rules to advance the idea of change towards citizens (on the limits of this perspective you can refer to S. Valaguzza, Governare per contratto, Editoriale Scientifica, Napoli, 2018).
Within the Italian legal system, the streamlining of regulation appears to be a paradox. Often new rules are added instead of removed. This also happens in the framework of the public procurement market.
Furthermore, adding new rules is not advised by the international organisations who analyse the public procurement market. For instance, the slogan promoted by OECD and UNCITRAL is ‘tools not rules’.
International organisations’ studies and European Commission Communication dated 3rd May 2017 –Making Public Procurement work in and for Europe – have had too little consideration.
Someone would think “new work” for lawyers. For us, instead, it is a wasted opportunity to overcome uncertainty giving confidence to businesses and public administration.