Decreto correttivo (D.Lgs. 209/2024) — the 2024 corrective decree to Italy's contracts code

Where it came from

Article 1(4) of the enabling act, legge 78/2022, allowed the Government to correct and supplement the code within two years. The decree was preliminarily approved by the Council of Ministers on 21 October 2024, opined on by the Conferenza unificata and by a special commission of the Consiglio di Stato in late 2024, and finally approved on 23 December 2024. Article 97 makes it effective on the day of publication.

Its structure is mechanical: articles 1 to 72 amend individual articles of the code, from article 8 through to article 226; articles 73 to 95 rewrite annexes; article 97 sets the entry into force.

Price revision: the change with the largest cash value

Article 23 of the corrective rewrote article 60 of the code. Revision clauses now bite when an objective condition produces:

• a variation in the cost of works, up or down, of more than 3 per cent of the total amount, and they operate on 90 per cent of the excess over that 3 per cent, applied to the performance still to be carried out;
• a variation in the cost of a supply or service of more than 5 per cent, operating on 80 per cent of the excess, on the same basis.

A new comma 2-bis allows supply and service contracts to keep ordinary indexation mechanisms alongside the revision clause, and says the increase paid under ordinary indexation is not counted when testing the 5 per cent trigger. Comma 4 hands the Ministry of Infrastructure and Transport, after hearing ISTAT, the job of adopting the cost indices for works on the homogeneous categories in table A of the new Allegato II.2-bis; sector-specific indices may be used instead where they exist, and contracts whose price is already set by an indexation are outside the mechanism.

Article 41 of the corrective then made revision clauses compulsory in subcontracts and sub-contracts notified to the buyer, triggered by the same objective conditions (new article 119(2-bis)).

Subcontracting and labour

The same article 41 added to article 119(2) a requirement that subcontracts be placed, for not less than 20 per cent of the subcontractable performance, with SMEs — with the tenderer free to state a different share in its offer for reasons connected to the subject matter, the characteristics of the performance or the relevant market. Article 119(12) now requires the subcontractor to apply the main contractor's collective agreement, or a different one that guarantees employees the same economic and normative protections, where the subcontracted activities coincide with those characterising the contract or fall in the prevailing category.

Article 2 of the corrective rewrote article 11(2): the buyer must name the applicable collective agreement in the initial tender documents and in the decision to contract. A new comma 2-bis extends that to separable, secondary or ancillary performance where it differs from the prevailing activity and reaches 30 per cent or more of the same homogeneous category of activity.

Participation requirements loosened

Article 32 of the corrective changed article 100(11), and this is worth checking against your own accounts. For services and supplies, general turnover may still be required only up to twice the estimated value of the contract, but it is now measured over the best three of the last five years before the procedure is launched, rather than the preceding three years. Similar contracts, as evidence of technical and professional capacity, may now be counted over the last ten years. A firm knocked out by one weak recent year, or holding a good but ageing reference, may qualify again.

Article 34 rewrote article 104(12): where avvalimento is used to improve the offer, the auxiliary firm and the firm relying on it may not both bid, unless the auxiliary shows with documents, when it applies, that there is no link reducing both to a single decision-making centre.

Below-threshold and procedural detail

Article 17 rewrote article 49(4): the outgoing contractor may be re-invited or chosen as direct awardee in reasoned cases, by reference to the structure of the market and the actual absence of alternatives, after checking that the previous contract was performed accurately and the quality delivered. Article 18 added article 50(2-bis), requiring the buyer to publish on its website the launch of a consultation for the negotiated procedures under article 50(1)(c), (d) and (e). Article 19 added article 53(4-bis): below-threshold guarantees get neither the reductions of article 106(8) nor the increases of article 117(2). Article 29 inserted a new article 82-bis on collaboration agreements; article 37 repealed article 109.

Transitional relief is in the new article 225-bis, inserted by article 70: the old article 67 on consortia keeps applying to procedures already advertised, the BIM obligations of article 43 do not reach programming already under way, and the rewritten project-finance rules of article 193 do not apply to proceedings in course.

What to do about it

On any tender advertised from 31 December 2024, read the price revision clause before the price schedule and check it against article 60 as amended; check which collective agreement the buyer has named, because it drives your labour cost; check whether the 20 per cent SME subcontracting share is workable for you and, if not, say so in the offer with reasons; and re-run your turnover and reference calculations on the new five-year and ten-year windows before deciding you are ineligible.

Related terms

• Codice dei contratti pubblici (D.Lgs. 36/2023) — Italy's public contracts code
• Affidamento diretto and the sotto-soglia regime (Italy)
• Qualificazione delle stazioni appaltanti — qualification of contracting authorities (Italy)
• ANAC — Autorità Nazionale Anticorruzione (Italy)

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