Deepening

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

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.

BIM Modelling: which legal consequences?

The Digital modelling and the presence of the CDE (Common Data Environment) represent an opportunity for the law making and contractual practices.
Digital modelling requires to rearrange, under the contractual terms, the main contractual performances and the ancillary activities (i.e. modalities of delivery, verification, validation of the projects and testing).
The digitalization of the design has changed the professional figures involved in that activity: roles, processes, objects, responsibilities, targets needed to be re-thought.
The outcomes of the activities are progressively integrated and everyone has the possibility to monitor the evolution of the model and its data, promptly identifying and solving the errors occurred.
The possibility to forecast and rapidly solve the errors would require to every part of the process, including the client, a different and higher level of diligence and would imply a change of the responsibility. And of course, a renegotiation of the relevant insurance policies.
As the professional performances become more and more integrated with each other, it is important to identify the discipline applicable to the so-called complex obligations with joint implementation (obbligazioni congiunte ad attuazione congiunta): this operation will be conditioned by the orientation the Civil Tribunals would take in the near future.
The deeply collaboration of the parties requires to set up a new network discipline that goes beyond the single contracts. Collaborative procurement satisfies this requirement. These contracts help the companies to improve their performances and to better use the modelling system made by brain storming, with evident advantage for the client. Without alliancing contracts BIM is much less useful.
At the same time, without an adequate implementation of the contracts, companies would be subject to more risks in term of responsibility.
There is a big danger in developing BIM modelling without a cultural change. In the current market of construction, for example, there is no way of wasting money, or false myths to be followed. What we need is far-sightedness, concreteness and collaboration, at all levels.

Is the public administration allowed to avail of algorithms with regard to assessments within its competence?

Is the public administration allowed to avail of algorithms with regard to assessments within its competence? The Consiglio di Stato, the highest Court in the administrative judiciary of Italy, gives a positive answer to this question. It encourages the use of new form of information technologies in the administrative procedure, especially in standard serial procedures. Anyway it sets specific limits.

– Consiglio di Stato, Section VI, n. 2270/2019 –

In the ever-changing process of innovation and digitalization, the use of algorithms – a set of rules that precisely defines a sequence of mathematic operations – represents the last frontier for the modernization of the public administration.
According to Consiglio di Stato, a higher level of digitalization of the public administration is essential to comply with the principles of effectiveness and economic efficiency provided by art. 1, L. 241/1990. Those principles, in accordance with art. 97 of Italian Constitution, require the public administration to achieve its aims and to pursue the public interest in the less costly way streamlining the administrative procedures. The ultimate purpose of digitalization is providing citizens with better services.
The engineering of evaluative procedures shall not lead to the breach of the principles which guide the actions of the public administration. In fact, the technical rule which governs the functioning of the algorithm is an administrative rule set by humans even if it is implemented by a machine. Consequently, the rule shall comply with the general principles of the administrative action, such as reasonability, proportionality, openness and transparency. The rule shall also provide a final solution for all possible scenarios, even for those unlikely, so that there will not be a discretional application by the machine.
The rule on which the algorithm is based on is always defined by the public administration. The public administration alone has the competence to asses all the public and private interests involved and, on the outcome of the evaluation, the authority to adopt a duly motivated rule.
Then the correctness of the whole automated evaluation process performed by the machine shall be appraised by the judge and examined in the judicial review.
In this perspective the algorithm shall be qualified as an informatic administrative act.
In conclusion, the use of algorithm is allowed if and to the extent the administrative action is transparent and duly motivated. This makes it possible to understand the logic of the mathematical operations and the public interest pursued by a digitalized public administration.
Legal experts are required by digitalization to take on a new role in order to prevent an unlawful administrative action.