liberalize without reaching 100%

07/05/2021 – Liberalize subcontracting, without however reaching 100%. This is the proposal that the National Association of Building Builders (Ance) launched during the informal hearing that took place, as part of the discussion on European bill, Tuesday in the Politics Commission of the European Union of the Senate.

The bill contains some changes to the Procurement Code. An ever-present topic not only for the multi-year tug-of-war between Italy and the European Union, which has always pressed for a more streamlined legislation on public contracts, but above all because the simplification of the Procurement Code is considered indispensable for the realization of the public works foreseen by the Recovery Plan.

Subcontracting, liberalization but not total

According to the vice-president of Ance, Edoardo Bianchi, the national regulations on subcontracting should be made more consistent with EU legislation, which does not provide for limits on the possibility of carrying out the work even indirectly.

Subcontracting, for Bianchi, is an organization of the factors of production, it is used to carry out the work and should not be seen as something deleterious. This is why he stated that Ance is 100% opposed to subcontracting, but in favor of liberalization for all categories of separable processes.

In concrete terms, according to Ance, it is necessary to:
delete the maximum percentage of subcontracting that can be used in tenders, compared to what is currently provided for by the new Code, which sets it, indiscriminately for all sectors of activity (works, services and supplies), at 30% of the total amount of the contract;

– leave the contracting authority the possibility to fix, from time to time, in the announcement or in the tender notice, a limit to subcontracting, to be affixed only to the prevailing category (which includes the “essential services” of the contract with respect to which, according to Community legislation, the contracting authority can assess the need to request direct execution of the contractor) and giving the possibility of fix this prohibition up to half of the amount of the prevailing category itself;

liberalize subcontracting for all categories of separable processes (SIOS and / or mandatory qualification), without prejudice to the obligation, in the event of subcontracting, to carry out the same through an operator with adequate qualifications;

– delete the provision that requires payment to the subcontractor of the labor costs;

– recover the central role of the contractor in the execution of the contract, balancing the responsibility of the latter towards the contracting authority with a provision that allows the subcontracted work to be used for the purposes of qualifying the contractor;

– clarify that, in the case of contracts similar to subcontracting, the activities carried out everywhere, for the works, must only be those carried out on the site to which the contract refers.

Subcontracting, the necessary streamlining

According to the Court of Justice of the European Union, the provision of a general limit of 30% for subcontracting, with reference to the total amount of the contract, can make it more difficult for businesses to access, especially those of small and medium size, and therefore represents a obstacle to competition.

In Italy, some judges stand adapting to the indications of the European Court.

In other cases, however, full liberalization raises concerns about the risk of criminal infiltration. Recently, the Lazio TAR has taken an intermediate position between the Italian rules and the Brussels prescriptions, stating that the general limit on subcontracting is contrary to the EU rules, but that limits can be justified the particular nature of the services.

The need for streamlining is felt by operators in the sector and translates into recourse to the derogations from the Procurement Code. At present, we remind you, the “temporary” derogation it has is still in force high from 30% to 40% the roof of the subcontract.

With the European law, under discussion, and with the new decree on simplifications, announced to accompany the works of the Recovery Plan, the situation could further change.

Source: Le ultime news dal mondo dell'edilizia by

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