Aid Decree News on Price Lists for Public Works Contracts Articles 26 and 27

On 18 May 2022, Decree Law no. 50 of 17 May 2022 ("Aid Decree") came into force. The Aid Decree provides for important changes, among other things, in the field of public works contracts to cope with exceptional increases in the prices of construction materials, fuels and energy products, also as a result of the Ukrainian crisis. Specifically, the relevant provisions are Articles 26 and 27, a summary of which is proposed  below.  Please  note  that  the  Aid  Decree  must  be  converted  into  law  within  60  days  of  its publication and is subject to changes and amendments during this phase.

Art. 26

Article 26 provides that, in relation to public works contracts (including those with a general contractor) awarded on the basis of bids to be submitted by 31 December 2021, the price lists updated by the regions by 31 July 2022 shall apply, limited to the year 2022. In the event of non-compliance by the regions, the Ministry of Infrastructure and Sustainable Mobility ("MIMS") shall act within the next fifteen days.

The updated price lists will cease to be valid on 31 December 2022, subject to a transitory extension to 31 March 2023 for tender projects whose approval has taken place by such date.
The rules for drawing up price lists are contained in the MIMS Guidelines (not yet adopted). 

Pending  the  adoption  of  the  updated  price  lists,  the  contracting  authorities  (stazioni appaltanti) may increase the regional price lists in force on 31 December 2021 by up to 20%. Should the applied variation be lower than the updated price lists, the adjustment (conguaglio) will be applied.

The higher amounts resulting from the updating of the above mentioned price lists, net of the reductions made in the offer, shall be recognised by the contracting authority (stazione appaltante) to the extent of 90 %. The relevant payment certificate shall be issued at the same time or in any case within 5 days from the adoption of the State of Works Progress ("SAL"). An extraordinary payment certificate shall be issued for the SAL relating to the works accounted for or settled between 1 January 2022 and 18 May 2022 that have already been adopted and for which a payment certificate has already been issued. The extraordinary payment certificate must be adopted within 30 days after the entry into force of the Aid Decree (18 May 2022). 

In both the aforementioned cases, payments shall be made net of any offsets already recognised or settled obtained by the contractor through the activation of any price revision clauses contained in the contracts. Payment  shall  be  made  within  30  days  from  the  adoption  of  each  SAL  pursuant  to  Article  113-bis  of Legislative Decree No. 50 of 18 April 2016 (" Public Contracts Code ").

The updated price lists also apply to tender procedures initiated after the Aid Decree and until 31 December 2022. 

Lastly, paragraph 12 of the Article in question adds that the aforementioned provisions, with the exclusion of the 20 % increase in the updated prices in use, also apply to public works contracts and framework agreements for works referred to in Article 54 of the Public Contracts Code of the companies of the Ferrovie dello Stato group and ANAS S.p.A. with regard to the price lists used by them and updated between 1 January 2022 and 31 December 2022. In relation to the contracts awarded to general contractors by the Ferrovie dello Stato group companies and ANAS S.p.A. existing at the date of entry into force of the Aid Decree (18 May 2022) whose works are in progress, an increase of 20 % shall be applied to the amounts of the works carried out and accounted for by the works manager from 1 January 2022 until 31 December 2022.

Art. 27

In order to cope with the so-called "high cost of materials" (caro materiali), Article 27 of the Aid Decree provides that, for the year 2022, the motorway concessionaires may update the economic framework of the executive project being approved or approved as of the date of the Aid Decree (18 May 2022) and in relation to which the relevant award procedures are scheduled to begin by 31 December 2023, using the most updated reference price list. 

The economic framework of the project determined in this way shall be approved by the grantor and shall be considered within the scope of the concession relationship, in accordance with the resolutions adopted by the Transport Regulatory Authority (ART) pursuant to Article 37 of Decree Law no. 201 of 6 December 2011 and Decree Law no. 152 of 6 November 2021. In any case, the higher charges deriving from the updating  of  the  economic  framework  of  the  project  do  not  contribute  to  the  determination  of  the remuneration of the net invested capital, nor do they affect the duration of the concession.