The public-private partnership (PPP) constitutes a method of cooperation between public administrations and private operators for the realization of infrastructure interventions and the provision of services of collective interest, combining financial resources, technical skills and management skills of both sides. This tool allows you to activate alternative financing sources compared to traditional public channels and to benefit from the specialist know-how of private operators, with the aim of making the processes of construction of strategic works more efficient and quick, such as roads, hospitals, energy systems and, in general, all those infrastructures that significantly affect the country’s economic and social development. In this context, the sector legislation aims to ensure that the private entity actually assumes the technical and financial risks connected to the initiative and, at the same time, ensures the protection of the general interest through criteria of transparency, competitiveness and correct contractual balance.
On December 31, 2024, Legislative Decree no. 209/2024, so -called “corrective decree”, which integrates and modifies the code of public contracts pursuant to Legislative Decree no. 36/2023.
With reference to the tools of the public-private partnership, the legislative intervention concerned, in particular, the project financing which finds its discipline in article 193 of the code, the subject of a profound review in order to increase its transparency, competition and consistency with national infrastructure plans. The new discipline of project financing, on the one hand, responds to the reorganization and improvement needs of the previous one that emerged from administrative practices and, on the other hand, welcomes the recommendations of the European institutions and the Council of State, which have underlined the need to strengthen the selection, evaluation and monitoring rules of the assignment procedures that see the sharing of private capital.
In the new text of article 193, the project finance is outlined as a model to be employed no longer exclusively for the interventions already included in the body’s planning tools, but also for further initiatives, proposed by private operators and with respect to which the administration has been a public interest in their implementation. In practice, the operator is allowed to submit an expression of interest, at the same time requesting the administration the data and information necessary for the preparation of a proposal. If the entity positively assesses the prospect of developing the work or service proposed, it is required to give wide visibility to the initiative on its institutional site so that other potential operators can also become aware of the data transmitted and, if necessary, in turn formulate improvement or alternative proposals. The obligation to publish the documentation sent to the “promoter” documentation represents a significant novelty for the project financing system, since it aims to avoid situations of information asymmetry and to promote effective competition, in line with the principles of equal treatment and non -discrimination typical of public custody.
In the same way, even when an operator presents a feasibility project complete with economic-financial plan and convention scheme, the administration is required to verify compatibility with the programming of the public-private partnership and the actual usefulness of the intervention proposed by the private individual, but the obligation to advertise is limited to the presentation of the proposal, without disseminating the design data. This approach aims to ward off that competing operators can take advantage of the promoter’s intellectual work, thus avoiding the dissemination of projects that could be easily imitated or reworked without having incurred their inial costs. In this perspective, the new discipline of project financing reaches a point of balance between the guarantee of free competition and the position of the promoter, which has undertaken the initiative by addressing a significant design and financial commitment.
In the following sixty days from the presentation of the proposal, the other operators possibly interested can submit alternative proposals to the Administration, including, in the following forty -five days, the project to be competed will be selected on the basis of a comparative evaluation. In fact, paragraph 5 of article 193 reiterates the need for the granting body to establish objective and predetermined criteria to measure the feasibility and economic-financial value of each proposal received, in line with the principles of transparency and accountability to which the administrative action must be inspired. This approach is also reappeared to the provision of article 174 of the code, which underlines how the allocation of operational risk (especially in the public-private partnership contracts) must remain in the end of the private operator, avoiding forms of excessive public protection that would end up distorting the very purpose of the ppp.
In addition, the new text of article 193 consolidates the coordination with article 175 of the code that regulates the three -year programming of public needs and the preliminary analysis of convenience in the choice of a PPP tool.
The corrective decree insists on the importance of an accurate preliminary phase so that the administrations rigorously evaluate the economic and feasibility components of the project, to avoid overestimate the value of the investment or to minimize the risks of construction and supply. To this end, the liability of the sole manager of the project (RUP) is expanded, in charge of monitoring the activity both from the technical and financial point of view, and the verification activity carried out by the Department for the programming and coordination of economic policy (DIPE) and by the general accounting of the State is strengthened, which also thanks to a dedicated portal supervise the correct management of PPP contracts, ensuring the traceability of the key elements (CUP, CIG, CIG, CIG. overall and duration).
Finally, a particularly discussed aspect concerns the reform of paragraph 12 of article 193 in terms of pre -emption.
Previously, the right to take over from the successful tenderer was exclusively entitled to the promoter, recognizing him a position of advantage for having incurred the initial costs of processing the project. The corrective decree, on the other hand, chooses to extend the pre -emption also to proposing operators who have presented projects admitted to the comparative selection. Specifically, in the event of non -exercise of the pre -emption, the successful tenderer must reimburse the promoter or the proposing expenses incurred for the creation of the project within the limit of 2.5% of the value of the intervention. If, on the other hand, the promoter or proponents decide to make use of the pre -emption, they will have to take charge of the same contractual conditions proposed by the successful tenderer and, at the same time, reimburse the latter of the expenses incurred, always within the limit of 2.5%.
This solution, while proposing to balance the protection of those who support the initial costs and to avoid the formation of actual monopolies, arouses strong perplexities since it risks compromising the attractiveness of project financing, disincentive the private operators from proposing new initiatives for fear of a limited economic recovery in case of failure to rely.
Overall, the entire operation of rewriting article 193 and, more generally, of the rules on public-private partnership, is part of a unitary vision of the code of public contracts which attributes considerable relevance to administrative efficiency, design quality and transparency of the procedures. Articles 174 and 175 of the code, which set the general principles regarding PPP and the planning of public needs, as well as the provisions on the qualification of granting bodies dictated by article 63, aim to consolidate the professionalism of the contracting stations, to encourage more homogeneous management of complex contracts and to contain disputes.
If the new regulatory system is translated into a significant increase in private initiatives and in an improvement in the quality of the proposals, in harmony with the objectives of collective interest, it could be considered that the PPP reform has created the objective of making the project financing a truly effective pillar for the infrastructure development of the country and for the strengthening of essential public services.
The final outcome will also depend on the administrative jurisprudence, called to interpret and apply the new legislation in a coherent way, dissolving any interpretative nodes and resolving the uncertainties that should emerge in practice.