Riccardo Villata, Mario Bertolissi, Vittorio Domenichelli, Giovanni Sala (editors), I contratti pubblici di lavori, servizi e forniture, (CEDAM, 2014), 2272 pp., Hardback, two volumes, € 170 (€ 153 on the publisher’s website), ISBN: 978-88-13-30047-0 

In recent years, the Italian law and practice of public contracts has been dealt with by legal literature mostly in the form of article-by-article commentaries. Generally, the commentaries dedicated to public contracts have an eminently practical content, with updated information organized in a rational fashion. Except for some minor differences, these works are similar in content, approach and focus on Legislative Decree No. 163/2006 (“Public Contracts Code”), implementing directives 2004/17CE and 2004/18CE.

Definitely different is the book under review. Edited by a group of renown Italian professors of administrative and public law, I contratti pubblici di lavori, servizi e forniture constitutes a veritable treatise that systematically illustrates, without the “rigidity” of an article-by-article structure, the entire subject of public contracts, in the light of recent developments in legislation and case law and taking into account the most recent and authoritative doctrine. 

The publication of the book is also to be welcome in the light of the recently adopted legislative package for modernisation of public procurement in the EU, which is made up of: Directive 2014/24/EU on public procurement (replacing Directive 2004/18/EC); Directive 2014/25/EU on procurement by entities operating in the utilities sectors: water, energy, transport and postal services (replacing Directive 2004/17/EC); Directive 2014/23/EU on the award of concession contracts. 

Briefly, the new directives provide for a simplification of the procedural regime set by the current rules. To this end, they contain measures to make procurement easier and administratively less burdensome and to create flexibility for public authorities enabling better procurement outcomes. In this respect, promotion of electronic procurement as a more user-friendly feature plays a crucial role in the simplification process. The new directives provide, in the light of some important judgments of the Court of Justice of the European Union, for the first time explicit legislative rules determining which contracts can be concluded between public sector entities without applying public procurement procedures. Furthermore, the directives cover cases where contracting authorities are concluding contracts among themselves without creating a controlled undertaking (the so-called “horizontal cooperation”). This could, for example, be the case where several municipalities decide to pool their resources in the field of waste management so that participating municipalities perform specific services for the other members of the cooperation. The new directives also aim at facilitating the participation of small and medium enterprises to tenders. Whilst in the past smaller undertakings have been excluded because the contracting authorities were asking for high annual turnover figures even for contracts of a low monetary value, in the future the required annual turnover should normally not be higher than twice the contract value.

Is the book under review still useful and worth buying in the light of the changes introduced by the new directives? The answer is unconditionally yes. The Member States have until April 2016 to transpose the new rules into their national law (except with regard to e-procurement, where the deadline is September 2018). This means, first of all, that for the next two years the new rules will not be applicable, not to mention that current rules will also be applicable in the future to all procedure regarding public contracts so far awarded, and, secondly, the book offers a “state of the art” of the current legal system and practice which will be of great help in understanding and, eventually, applying the new rules. 

The book is divided into two volumes. The first volume deals with topics such as the tender procedure, the requirements of the participants to the procedures, the criteria for selection of tenders, the analysis of new institutions derived from EU law (i.e. the competitive dialogue). The second volume focuses on execution of contracts and procedures relating to service concessions, project financing and public contracts related to special areas and cultural heritage. Of particular interest in this reviewer’s opinion is the attention paid to litigation issues, in the light of recent legislative acts, as well as to the alternative dispute resolution instruments (amicable agreement and arbitration).

The authors are well recognised experts in the field, academics and practitioners, and the approach followed is to discuss the different aspects of public contracts in the broader legal context in which they take place. Of course, EU law and the jurisprudence of the Court of Justice is always recalled where needed. Among the many interesting chapters of the book, worth mentioning here is the very useful and informative second chapter of the first volume dealing with the “Authority for the Supervision of Public Contracts”, which has been established by law n. 109/1994 with the aim of supervising public contracts in order to grant compliance with principles of transparency, rightfulness and competition among operators in the public procurement market. Also very detailed is Chapter 11 concerning tender rules and selection procedures. 

Overall, the book is clearly written, well researched and also provides critical comments and suggestions. It is certainly a “must-have” for those involved or interested in the Italian law of public contracts. 

Riccardo Sciaudone

Head

Reviewed May 2014