Towards a Greener and More Responsible Future

The shift towards sustainability in business activities has been a well-established practice for several years in Northern Europe, where companies and public administrations have integrated social and environmental responsibility principles into their daily operations. In Italy, however, this collective move towards sustainability is relatively recent. Fortunately, our country is quickly adapting to these new socio-environmental policies, which are revolutionizing how public administrations operate and interact with citizens.

Public administrations, as the main representatives of collective interests, are called upon to follow the ongoing path of change. This implies a significant shift in their approach to their areas of competence. One of the most effective strategies for implementing this change is the adoption of a non-financial report, or sustainability report. This tool allows for the immediate and clear communication, even for non-experts, of the social and environmental activities undertaken in accordance with sustainability.

The adoption of sustainability reports produces a series of positive and well-identifiable effects. Firstly, it allows administrations to gain a high margin of public consensus. This consensus can be a significant advantage during the electoral campaign period, as demonstrated by the increase in lists defending the environment, animals, and social minorities. During the mandate, a high approval rating produced by sensitivity to certain issues can translate into strong support and political cohesion, facilitating the implementation of sustainable policies.

Another significant advantage concerns the additional points that administrations receive when participating in national and European tenders and funding opportunities. In fact, there are increasingly numerous calls that award extra points to administrations that demonstrate attention to specific thematic areas, such as environmental and social sustainability. This can translate into greater opportunities to obtain funding and support for innovative and sustainable projects.

The adoption of sustainability reports should lead to an effective improvement in the administrative attitudes pursued to date. This change not only promotes more responsible and transparent practices but also gives a new, youthful, and clean image to administrations, which are the main social mirror. An administration committed to sustainability reflects the values of a modern and aware society, ready to face the environmental and social challenges of our time.

In Italy, the regulatory framework supporting the adoption of sustainability reports is well-defined. Legislative Decree 254/2016, for instance, implements Directive 2014/95/EU of the European Parliament, requiring large companies and groups to disclose non-financial and diversity information. This decree represents a milestone for administrations that wish to integrate sustainability into their operations. Similarly, Law 221/2015, which introduces green economy measures and aims to reduce excessive use of natural resources, and EU Regulation 2020/852, which promotes sustainable investments, are fundamental in promoting sustainable practices in public administrations.

Conclusion

In conclusion, the adoption of sustainability reports represents a fundamental turning point for Italian public administrations. Not only does it improve the transparency and accountability of their operations, but it also strengthens their bond with citizens, promoting a collective and sustainable vision for the future. Administrations that embrace this change will be able to respond more effectively to society’s needs, contributing to creating a healthier and more inclusive environment for all.

For those who work with local authorities on a daily basis, it is well known how frequent it is that certain expenses must be recorded outside the normal commitment procedures, thus requiring the authority to turn to institutions such as off-balance sheet debt and prior liabilities. The choice is obviously not discretionary (although subject to a partial interpretation concerning the nature of the debt) and has precise and important repercussions. Normally speaking, off-balance sheet debts are provided for and governed by Article 194 of the Consolidated Law on Financial Intermediation, which qualifies them as a real exception to be applied to peremptory hypotheses such as: 

• executive sentences 

• covering deficits of consortia; 

• recapitalisations of corporations for the operation of public services; 

• expropriation or emergency occupation procedures; 
• acquisition of goods or services within the limits of proven and proven enrichment benefits. 

What is evident in the above list is that off-balance-sheet debts constitute, civil law speaking, obligations that are entirely valid and capable of producing effects even if contracted in the absence of the necessary commitment of expenditure proper to administrative law. 

In order to prevent these debts from remaining outside the entity’s budget, in open contrast with the principle of the universality of the budget, which prescribes that all revenue and expenditure must be entered therein, the legislature provided for an ad hoc procedure for their recognition. The procedure involves the Municipal Council, which is called upon to give its opinion as the holder of the power to scrutinise and make use of the commitments undertaken by the Local Authority. 

As for past liabilities, these are envisaged by Article 191 of the Consolidated Law on Finance and can be qualified as expenses related to the year of their occurrence that have been placed within an ordinary expenditure commitment but, due to unforeseeable events, do not find suitable coverage. The adjustment mechanism in this case will be an ordinary expenditure procedure with a possible budget variation. Evident in this case is the incapacity nature of the expenditure. 

Once the boundaries of the two cases have been delineated and clarified, it is clear that the qualification of the debt upstream of the two procedures is fundamental for adherence to either type, an activity to be delegated to technicians and experts in the sector in order to proceed with their regular classification.

The new public procurement code, which entered into force on 1 April 2023 with Legislative Decree No. 36, has not only offered users a single reference text on public procurement, but has revolutionised, in some cases, the regulatory landscape by introducing guiding principles such as result, trust, market access and transparency. It is precisely in relation to this last pivotal criterion of public law that the Plan for the Prevention of Corruption and Transparency, which the individual administrations must obligatorily publish every year in order to make clear, transparent and demonstrate how much corruption risk is contained within them, cannot but be called into question. 

But let us go step by step. What is the PTPCT in brief? Is there a deadline by which it must be published? Have the provisions for its drafting and publication changed with Legislative Decree No. 36/23? The first question (perhaps a foregone conclusion for those about to read such an article!) is soon answered: the PTPCT is an act that identifies, in the wake of the national anti-corruption plan that ANAC adopted for the first time in 2013 as a policy act, the degree of exposure of the administration adopting it to the risk of corruption, indicating the measures it adopts to prevent and deal with the risk itself. Its articulation, reduced to a maximum sintering, can be broken down as follows: context analysis, risk assessment, risk treatment. Entities and administrations have an annual deadline for publishing the Plan and it is 31/01 of each year, unless extended (for local authorities, for example, the deadline is 15/04/24). An important simplification worthy of note is envisaged for entities with fewer than 50 employees, which, after the first adoption, may confirm in the three-year period the plan adopted in the previous year if no corruptive facts have emerged or no organisational changes have been introduced. This confirmation must result from a reasoned deed of the governing body. 

With regard to the novelties introduced by the new procurement code, one cannot fail to note the enormous impact of the digitalisation of the procurement system on the transparency obligations of public administrations, which ANAC has punctually crystallised in Resolution 601 of 19/12/2023, which supplemented Resolution 264 of 20/06/2023, as well as the methods for the legal publicity of acts. The digitisation of the entire contract life cycle, in fact, implies that the planning, design, publication, awarding and execution phases are managed through certified digital procurement platforms, which implies total transparency of all phases of the contract life cycle. The publicity obligation for all kinds of public tenders and contracts is ensured through the Platform for Legal Publicity, which will be part of the ANAC database, and no longer through the Official Gazette. Contracting stations and awarding bodies will therefore compile notices on the platform according to the new European forms (‘eforms’) or according to models prepared for publication on the National Public Contracts Database. From the moment of publication, the contracting stations will have to make the tender documents accessible, guaranteeing access until the completion of the procedure and the execution of the contract. Under the new system, the legal effects of the published acts will run from the date of publication in the National Public Contracts Database. It goes without saying that these different provisions have an incisive impact on the mapping of the risk analysis processes to be assessed when drawing up the corruption prevention plan, giving rise not only to different types of corruption risks, but also to multiple and additional techniques for preventing them. 

These in a nutshell are some of the novelties in view of the upcoming deadline of 31/01/24 for the publication of the PTPCT. We wish all those concerned good work in dealing with the new legislation!

New RUP and old RUP: the continuity of the acronym does not help to denote the change that legislative decree no. 36/2023 has brought about (for some in a fruitful manner for others less so) in relation to the figure indicated.

In fact, the new public procurement code, which is gradually replacing the previous code, has significantly changed principles, professional figures and procedures belonging to the previous discipline. 

One of these changes has concerned, precisely, the RUP (formerly the single person in charge of the procedure, now the single project manager) to whom the new code has reserved, in addition to the articles of the decree, Annex I.2 regulating the methods of identification, professional requirements and tasks.

What certainly cannot be denied is the increasingly clear definition of this professional figure as a project manager (previously the RUP had been influenced by a vision increasingly akin to the project manager as suggested by the European directive of public procurement transposed by ANAC with Guideline no. 3 Determination 1097/2016 then updated with the Code of Contracts Legislative Decree 56/2017 with Guideline no. 3 Determination no. 1007/2017) that can follow the implementation of a public work from its planning to its realisation.

Project management focuses, in fact, on the triangulation between time, cost and quality of performance, which are three aspects that can be in contradiction with each other and for this reason must be managed and regulated with extreme competence (decreasing costs, for example, means increasing time and generating uncertainty on the quality standard).

These, today more than ever, have become pivotal elements in the activities of the P.A. Just think, for example, of those to be carried out in connection with or as a consequence of the PNNR, which imposes stringent time constraints to be respected to which we in Italy are not accustomed, so it is necessary for ‘insiders’ to be trained in this perspective in order to make a qualitative leap on this front.

For this reason (perhaps) the new Code should have been more stringent in indicating specific technical skills to be found in such an apex figure rather than simply requiring ‘an appropriate level of education and one/three years’ professional experience’.

In view of the fact that one of the main innovations of the reform in relation to this figure consists in the fact that the RUP itself will no longer deal with the procedure as a single phase, but will supervise and coordinate, with a view to a result principle, the various phases (in which individual responsible persons will be appointed) preordained to the realisation of a project, accentuating more and more the managerial and responsibility aspect. In fact, it remains the responsibility of the RUP to ensure the completion of the public intervention within the prearranged deadlines, responding both in the event of failure to enter into the contract and in the event of delays in its execution. 

Notwithstanding the fact that the appointment cannot be refused, Article 15, paragraph 6 provides, however, that contracting stations and awarding bodies may allocate financial resources not exceeding 1 % of the tender amount for the direct entrusting by the RUP of assistance assignments to the same. Obviously, the services that the RUP may directly entrust are technical or legal services, with the aim of managing the contract in the best possible way, but the fact remains that potentially high direct entrustments are left to its discretion.

For this reason, ANAC has already raised concerns in relation to this rule. 

In principle, it can be seen that the changes made are all aimed at increasing the responsibility (without raising the basic levels of competence, however!) of the figure with the consequent expansion of his discretionary powers, which in the public sphere can always become a double-edged sword.

For this reason, the advice to those who are about to take on this role is to implement their training to the best of their ability in order to move autonomously and consciously within the public system.