The timeline of the new Italian public procurement code

The new public procurement code has undoubtedly reshaped the scenario crystallised for some seven years by Legislative Decree No. 50/2016.

In addition to qualifying the active subjects of public law, re-quantifying the thresholds in tenders, adapting public administrations to the age of digitalisation (and much more), it has also gradually coordinated the passing of the baton from the old to the new code, so as to allow operators a step-by-step adjustment to the new discipline.

Although, in fact, Legislative Decree No. 36 of 2023, published in the Official Gazette on 31 March 2023, officially came into force on 1 April 2023, its provisions, as specified in Article 229 of the same code, will only take effect, and thus be able to explain their effects, from 1 July 2023.

In addition to these two time references, there is also a transitional period expiring on 31 December 2023 during which the provisions of both the old code and the simplification and simplification bis legislative decrees apply.

This multiplicity of dates, as well as the time span of coexistence of the ‘old with the new’ generates, understandably enough, a situation (at least on the surface) of regulatory uncertainty in identifying which rules are to be applied by public sector operators. 

The first step, which is also the simplest one, is to understand the discipline of the procedures in progress as of 1 April 2023 (specifically, by procedures in progress we mean procedures and contracts with notices or already published or for which notices to submit bids have already been sent out, as well as procedures for which the design assignment has been formalised). For these, as is generally the case, the rules of Legislative Decree 36/23 do not apply but those of the previous code remain in force.

The same discipline applies to proceedings commenced before 1 July 2023 (and after 1 April 2023), which is the only reference date for the repeal of the old regulations.

The articles of the old code, therefore, that will continue to be used the most will be Article 70 concerning pre-information notices, Article 72 concerning the drafting and publication methods of notices, Article 73 concerning the national publication Article 127 paragraph two and Article 129 paragraph four concerning contract notices and contract award notices. 

On the other hand, the new discipline will apply to the procedures that are hinged after the date on which the rules of the new code become effective, with the exception of certain articles of the previous discipline that will “expire” only on 31/12/2023, giving rise to the so-called transitional period of coexistence of the two codes.

During this time period, in addition to the previously identified articles, other articles will remain in force, mostly concerning specific technical activities.

The activities concerned are, for instance, the drafting or acquisition of documents relating to the procedures for programming, design, publication, awarding and execution of contracts, access to tender documents, submission of the single European tender document, submission of tenders, opening and preservation of the tender file, technical, accounting and administrative control of contracts, including during execution, as well as the management of guarantees.

However, as of 1 January 2024, the articles of the new procurement code, and specifically articles 19 to 31, 35, 36, 37, 81, 83, 84, 85, 99, 106 paragraph 3, 115 paragraph 5, 119 paragraph 5, 224 paragraph 6, will also become effective for the activities listed above.

Analysing the timeline just illustrated it is easy to understand how the concern that an excessively fast transition to the new rules could block the procurement system, completely reversing the practical effect of the reform, has led to the generation of a complex discipline (even the De Lise code remains alive in the transitional period!), fragmented and consequently ill-defined. 

The practical advice for those approaching the new discipline is to proceed with a careful analysis of the operations or activities that one is called upon to perform in order to be able to correctly identify one’s sphere of operation and understand whether this, both in terms of time and content, has been (already) touched by the reform.