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Editorial

Press releases and law firm thought leadership

This page is dedicated to keeping readers informed of the latest news and thought leadership articles from law firms across the globe.

If your firm wishes to publish press releases or articles, please contact Shehab Khurshid on +44 (0) 207 396 5689 or shehab.khurshid@legalease.co.uk

 

The Public Administration Electronic Market: the future of public procurement

The Public Administration Electronic Market is a digital marketplace, created in 2002 and managed by Consip S.p.A., the Italian central purchasing body, on behalf of the Ministry of the Economy and Finance. Through the Ministry, registered authorities can purchase goods and services offered by suppliers that have been vetted and authorised to post their catalogues on the system for values below the European threshold.

This system of purchase of goods, services and maintenance works is part of the public contracts because the purchaser is the Public Administration; it changes the purchasing system but not the subjects.

The Public Administration Electronic Market is part of the eProcurement, namely the procurement of goods, services and maintenance works through new telematic procedures and it is a Business to Government (B2G) tool as the offer consists of companies that sell goods or provide services to the Public Administration.

The advantages of a system such as the Public Administration Electronic Market and, in general, of the eProcurement are so numerous that the European Commission, during the Interministerial Conference on eGovernment "Transforming Public Services" in 2005, stressed the need of the Public Administration to provide quality services designed on the needs of users. In this context, eProcurement has been recognized as one of the priority objectives [1].

The legislator sets out the electronic market as "a purchasing and bargaining tool that allows electronic purchases for amounts below the threshold European level based on a system that implements procedures for the selection of the contractor entirely managed electronically" through the letter bbbb) of paragraph 1 of article 3 of Legislative Decree 50 of 2016, the Code of public contracts.

The article 36 of the same Code deals with contracts below the threshold: the most interesting aspect is that paragraph 6 provides that they can also be carried out through the electronic market tool and that "the Ministry of Economy and Finance, through CONSIP S.p.A. makes the electronic market of public administrations available to the contracting authorities" [2].

The legislator did not deem to bring innovations to the Public Administration Electronic Market; he reconfirmed the law, line of decisions and practice that had been established up to that moment.

The Stability Law of 2016 introduced the possibility to make competitive biddings for maintenance works.

The Public Administration Electronic Market represents the future of public contracts; in fact, the use of eProcurement platforms by economic operators is becoming increasingly frequent. Since 2002 there has been a continuous increase in the use of electronic platforms, both in Italy and abroad, considering the fact that they allow time to be saved, thanks to the simplification of procedures in the purchase of goods, services and maintenance works without sacrificing the need for transparency, which is fundamental in the field of public contracts [3].

There is complete transparency in eProcurement electronic systems. This is the case due to the publication of all the documents that can be easily consulted, excepting the reserved ones. Another significant aspect is that the Public Administration Electronic Market also allows small and medium-sized enterprises (SMEs) to participate in numerous competitive biddings, with positive effects on the economy.

This system allows public administrations to obtain customised products through their own tools, while, at the same time, pursuing significant savings in public spending. The purchase procedures on the Public Administration Electronic Market, entirely dematerialised, have a positive impact on the environment. In conclusion, through the Public Administration Electronic Market in Italy and the various European eProcurement systems, the need for speed, transparency, simplification and containment of public spending, once considered divergent, are now combined, allowing the purchase of different products according to the requirements of the Public Administration.

 

Endnotes:

[1]BERTINI - VIDONI, Il Mercato Elettronico della Pubblica Amministrazione - MEPA, Scenario, funzionalità e linee di tendenza, in Quaderni Consip VI, 2007

[2] See the Legislative Decree No. 50 of 18 April 2016

[3]CONSIP S.P.A., I numeri del programma - Anni precedenti, acquistinretepa.it

Golden powers: a new set of special powers for the Italian Government

The Law Decree No. 21 of 15 March 2012, converted by Law No. 56 of 11 May 2012, introduced a new set of special powers for the Italian Government in relation to strategic sectors such as defence and national security, energy, transport and communications.

Renewable Energy and Conservation - Overview

The article concerns the regulation of the Renewable Energy Market in Italy, providing a brief overview on the matter at hand. 

LIBERALISATION OF THE GAS DISTRIBUTION SERVICE: AN UPHILL STRUGGLE?

The Legislative Decree No. 164/2000 (also known as “Letta Decree”) qualifies the natural-gas distribution activity as a public service. This qualification derives from the aim of natural-gas distribution to meet the needs of the community, by ensuring the equal access to the gas grid (so-called “third party access”), the continuity and the quality of the service.

After stating the public service nature of the distribution activity, Article 14 of the aforementioned Decree regulates the procedure for awarding it through mandatory public tenders launched by Local Entities. Within a gas distribution market qualified as a natural monopoly, the choice for tender procedures is directed at ensuring competition between different companies (in order to earn benefits in terms of efficiency, quality of the service and more reasonable prices for the end-consumers).

New Rules on Public Procurement: A Stronger Stance for “Greener” Public Contracts

With Legislative Decree No. 50/2016 (the so-called “Public Procurement Code”, hereinafter “PPC” or “the Code”) Italy implemented the EU Directives 2014/23/EU, 2014/24/EU and 2014/25/EU, concerning, respectively: (i) the award of concession contracts; (ii) public procurement; and (iii) procurement by entities operating in the water, energy, transport and postal services sectors. The PPC, by repealing the 2006 Code on public procurement (Legislative Decree No. 163/2006), reorganised the pre-existing Italian legislation on public contracts relating to public works, services and supplies.

THE MADIA ACT ON PUBLIC COMPANIES: AN OVERVIEW

It is estimated that there are about 8,000 companies in Italy whose capital is owned by public administrations (State, Regions, Provinces, Municipalities, etc.…).

Ultimately, the need for spending review has led the Italian Government to intervene (again) in this sector of the Public Administration, by issuing Legislative Decree No. 175/2016 (“the Decree”), which follows other reforms promoted by Minister Marianna Madia pursuant to Law No. 124/2015.

The Decree aims at regulating the participation of public administrations in the share capital of companies, in order to rationalize the number of public companies and make sure that they are duly managed.

The EU and Italian Concessions for the Exploitation of Publicly Owned Maritime Assets

In Italy, the economic interests related to the commercial exploitation of publicly owned maritime (and lakeside) assets are considerable. The Italian coastline is, in fact, longer than 7,000 km and there are more than 30,000 bathing businesses. The majority are family-run businesses and employ over 100,000 people.

These assets fall under the rules laid out by the Legislative Decree No. 327/1942 (the so-called Shipping Code). In particular, Article 36 provides that their commercial exploitation may be subject to a concession. It also establishes that, in case of various requests over the same maritime asset, the Administration will choose the applicant who guarantees the best utilisation of the property in accordance with the public interest and intends to set up removable equipment.  However, in practice, the existing concessions are generally automatically renewed upon expiry without carrying out any transparent and impartial procedure for selecting candidates.

PUBLIC ADMINISTRATION – A REFORM

Laws reforming the Italian Public Administration have been approved concerning so-called “silenzio assenso” and time limits on non-judicial executive action. There are moves for tighter controls on leadership, to improve quality in the public sectors, to streamline all services and to make them more economical.

In-House Providing

“In-house providing” is the result of the dispensation of public tender procedures for public administrations, and allows the administrations themselves to provide goods, services and works internally, rather than acquiring them from the market. This model was created under EU case-law, specifically with the Teckal Judgement dated 18 November 1999, Case C-107/1998 between Teckal S.r.l and the Municipality of Viano, which defined two necessary parameters for in-house contract award procedures.

Procurement System within the framework of MePA

In compliance with the provisions of art. 328, cl. 4, d.P.R. 207/2010, the Contracting Authority can purchase goods and services below the value of European Union thresholds by taking advantage of the public administration electronic market. To do so, they must follow one of the following procedures:

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