The "Sostegni Ter" Legislative Decree converted into law: the provisions regarding price revisions in public tenders
The week that has just ended saw the completion of the conversion into law, by the Assembly of the Chamber, of the so-called Sostegni-ter Decree (Decree Law no. 4 of January 27, 2022) regarding "urgent measures in the field of support for companies and economic operators, labor, health and territorial services, connected with the emergency from COVID-19, as well as for the containment of the effects of price increases in the electricity sector".
Among the provisions adopted, with the declared aim of mitigating the alarming effects due to the exponential increase in the cost of raw materials and energy (and not slowing down the achievement of the objectives of the National Reform Programme), the regulation dictated on price revisions in the awarding of public contracts stands out in primis.
In fact, art. 29 of the aforementioned decree law provides that in the awarding of public contracts it will be obligatory to include, in the initial tender documents, the price revision clauses provided for in article 106, paragraph 1, letter a), first sentence, of Legislative Decree no. 50 of April 18, 2016, without prejudice to the provisions of the second and third sentences of the same paragraph 1.
In substance, the obligation and no longer the simple option to include a price revision clause is extended to all public contracts awarded from January 27, 2022 until December 31, 2023.
However, the compensation mechanism provides for different rules depending on whether the assignment concerns works, rather than supplies and services.
In fact, for services and supplies, the legislator has provided for "only" the obligation to include price revision clauses, without, however, defining their content in advance and automatically.
Therefore, it should be noted that administrations will - for renegotiation in the field of services and supplies - necessarily have to establish the nature and "scope" of any contractual amendments, as well as the conditions under which they may be applied.
On the contrary, with regard to contracts relating to works, by way of derogation from Article 106, paragraph 1, letter a), fourth sentence, of Legislative Decree no. 50 of 2016, changes in the price of individual construction materials, upwards or downwards, are assessed by the contracting authority only if such changes are more than five percent compared to the price (no longer 10%), detected in the year of submission of the offer, taking into account the provisions of the decree of the Ministry of Infrastructure and Sustainable Mobility referred to in paragraph 2, second sentence.
In this case compensation is carried out, either upwards or downwards, for the percentage exceeding five percent and, in any case, to the extent of 80% of said excess, within the limits of the resources of the fund specifically set up by the Ministry.
In order to obtain an effective revision, the contractor must therefore submit an application for compensation to the contracting authority - under penalty of forfeiture - within sixty days of the date of publication in the Official Gazette of the Italian Republic of the decree containing the updated prices of raw materials.
The director of works of the contracting authority will verify the possible higher costs incurred by the contractor, to be proved with adequate documentation, including the declaration of suppliers or subcontractors or with other suitable means of proof relating to the variations (in practice it will be sufficient to prove in the invoice the higher purchase cost incurred by the manufacturer compared to the one indicated at the time of submission of the offer).
In conclusion, although the so-called "Sostegni ter" undoubtedly represents a concrete support to companies, with a view to guaranteeing coverage of the additional costs of raw materials for the administration, there remain some critical aspects that have not been adequately resolved even during conversion.
In particular, we refer to the lack of uniformity between the compensation mechanism applicable to works contracts (practically automatic within the limits of the ministerial fund's availability) and that regarding services and supplies (which is substantially left to the delicate negotiation of individual contracting authorities).
This aspect was the object of specific attention on the part of the Chairman of ANAC, who in a press release of February 25, 2012 called for the extension of the same automatic compensation mechanism to services and supplies as well, precisely in order to avert two types of risk:- deserted tenders as they are unattractive from the point of view of cost sustainability.
- the proliferation of requests for "variants during the course of the works", on the part of not very "reliable" contractors.