25/05/2020 – Design levels, integrated procurement regulation, BIM, role of the OR and contracts below threshold. These are some of the subjects included in the new draft of implementing regulation of the Procurement Code. The text summarizes in an organic norm the provisions hitherto scattered in the system of guidelines and ministerial decrees.
In any case, this is a rule that can still face other changes and that could even clash with the simplification of the Procurement Code, requested by many business representatives.
Let’s see some points concerning the design, awarding and construction of public works.
The design must be divided into: technical and economic feasibility project (preceded by the feasibility document of the design alternatives) final and executive project.
The draft regulation follows the contents of the decree developed by the Ministry of Infrastructure about two years ago, but never entered into force.
Normally, the executive project must be based on the tender. However, to give new life to the construction sites, a temporary modification to the Procurement Code was decided in 2019, which allows, until December 31, 2020, the integrated contract, i.e. the joint assignment of the design and execution of the works.
The draft regulation confirms that the joint assignment of the executive design and construction of the works, on the basis of the technical and economic feasibility project, is allowed only in the case of project finance, availability contract, financial leasing, construction of works of urbanization, natural disasters.
The joint assignment of the executive design and construction of the works, based on the final design, follows a series of rules. The executive project cannot foresee changes to the definitive one and, if further studies are necessary, no additional compensation is foreseen. The executive project must then be approved by the Contracting Authority which, in the event that the documents are not worthy, can withdraw from the contract.
BIM, training for PAs
The new draft regulation provides that the administrations, in the planning, construction and management of the works, make use of the BIM decree. To make the novelty viable, training programs are also provided for PA staff and the purchase of suitable hardware and software systems. At the moment, in fact, these are the objective difficulties that prevent many Public Administrations from launching BIM competitions.
Role of the RUP
In the works and in the works contracts and in the services relating to engineering and architecture, the person in charge of the procedure (RUP) must have a specific educational qualification and professional experience. In particular, one year’s professional experience is required for the assignment of works of less than 150 thousand euros, 2 years for works for an amount between 150 thousand and one million euros, 3 years for works for an amount between one million euros and the community thresholds, 5 years for amounts above the European thresholds.
For particularly complex jobs, in addition to the experience of at least 5 years in the activities of planning, designing, awarding or executing works contracts and concessions, and a master’s or specialist degree in the subjects subject to the intervention to be entrusted, the Project Manager qualification.
The RUP is in fact required a series of tasks, including the coordination of the preliminary investigations for the construction of the works, the start of the urban variation procedures, the verification of the design levels, the recognition of the internal professional skills for the design, the authorization of any variants.
Procurement below threshold
Under i 40 thousand euros direct assignment can be chosen, with or without consultation of two economic operators. The draft regulation adds that, if you choose not to consult any operator, you can proceed directly with the determines to contract. The assignees can submit a self-declaration on the absence of causes of exclusion, on which the Contracting Authority then reserves the right to carry out the necessary checks.
In the band between 40 thousand and 150 thousand euros, the Code provides for the possibility of direct assignment, after consulting at least 3 estimates for works and 5 for supplies. The draft regulation explains that the Contracting Authority can proceed with the award even if, after consultation, only one estimate has been presented. At the same time as the offer, a self-declaration must be submitted stating the absence of grounds for exclusion.
The draft regulation does not give indications on the other ranges of contracts below the threshold (that between 150 thousand and 350 thousand euros, between 350 thousand euros and one million euros and between one million and the thresholds of Community importance).
The new draft also confirms the rotation principle and the ban on inviting the outgoing contractor, except in rare cases that must be adequately motivated by the particular structure of the market. Entrustment to the outgoing operator will be allowed even if at least 18 months have elapsed between the previous assignment and the new procedure.
The threshold below which exceptions to the principle of rotation of invitations and assignments should also rise from the current 1000 to 5 thousand euros.