The “Public Debate”: Hopes And Concerns Arising From A New Feature Of The Public Procurement Tender Rules In Italy

On 19 April 2016 the new Italian Public Procurement Tender Code (the “Code”) entered into force (Legislative Decree 50/2016 implementing EU Directives 2014/23/EU, 2014/24/EU and 2014/25/EU).
 
Art. 22 et seq. of the Code introduce for the first time an additional phase in the procedure aimed at adjudicating public procurement contracts on large infrastructures, called “the Public Debate”. Although the rules on “Public Debate” are not immediately operational as yet, because implementing regulations still need to be promulgated, the “Public Debate” is raising both hopes and concerns among contractors operating in the field of the public procurement of large infrastructure projects.
 
In particular, the Code now requires any public entity which intends to launch a tender for an infrastructure project, to convene beforehand a meeting between the public administrations involved and those “stakeholders” of the project, including citizens' committees, which have expressed their interest in the project.
 
As an effect of the calling of such meeting, a debate period starts, which must be completed no later than four months after the first meeting is held. The “debate” will have to meet certain minimum requirements including: the publication on the website of the contracting authority or entity the project, together with a “technical and economic feasibility” study, the collection of online comments and the publication of the results of the consultation.
 
All remarks and comments collected during the debate and coming from other public administrations, authorities and citizens, and the outcome of the consultation will be first made public and then also evaluated in the course of the administrative proceeding leading to the approval, rejection or amendment of the project.
 
The “public debate” phase in large infrastructural projects is not a novelty; in fact, it is already present in the regional legislation of Tuscany, as well as is common in many non-Italian legal systems, where it is seen as an essential tool for the local authorities involved in making decisions in relation to localisation and realisation of major projects with significant local environmental, economic and social impact. The expectation is that the “public debate”, will ensure greater social acceptance of large infrastructures, prevent litigation and accelerate the execution of the project itself.
 
The experience of other countries seems to corroborate this thought. In France, the “public debate”, introduced in 1995 by the so called “Law Barnier”, is governed by a National Commission independent from the government and the Ministry of Infrastructures. Pursuant to the “Law Barnier”, all potential stakeholders, whether or not organised in any form, are entitled to participate and provide an outcome that, although purely advisory, with no decision-making power, has reduced, according to statistics, litigation by about 80%.
 
Similar effects are expected in Italy which is perceived as a country with a high rate of litigation or contentious proceedings in connection with large infrastructural works. Statistics seem to indicate that in 2015, there were over 355 complaints relating to public works in Italy, with an increase of 5% over the previous year, one of the most disputed areas being energy (with 62% of reported complaints).
 
It is in particular expected that the possibility, introduced by the Code, to scrutinize and select effectiveness and representativeness of those participating to the Public Debate will avoid or mitigate the risk that courts be clogged by a myriad of litigation started by an undetermined number of subjects that alone or as representatives of asserted public interests will try to challenge or interject into the project.
 
In conclusion, although the Code has not yet become operational, most commentators welcome the introduction of the Public Debate in the Code as a long waited move to conform Italian law with the rest of the EU and as a tool which may be conducive to preventing and possibly avoid altogether the long, expensive and bitter confrontations (such as the one that has plagued the high velocity train line in Val di Susa) that are sometimes one of the side effects of large infrastructural projects that, although perceived as indispensable by the government and the population at large, heavily affect the life and economies of local communities. 

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