Background
The Infrastructure Decree constitutes a measure aimed at expediting the implementation of strategic infrastructure, strengthening the safety and resilience of the transport system, streamlining procurement procedures and emergency management, supporting the energy transition, and ensuring the organization of major international sporting events, in accordance with the objectives of the National Recovery and Resilience Plan (PNRR) and European Union legislation.
In particular, the Infrastructure Decree has:
a) introduced a series of urgent measures aimed at expediting the implementation of strategic infrastructure projects, with particular focus on major works such as the Strait of Messina Bridge and the Salerno-Reggio Calabria motorway
b) identified and financed priority interventions, including roads, bridges, railways, and logistics hubs, by appointing extraordinary commissioners to accelerate the design and execution phases
c) amended Legislative Decree No. 36/2023 (the “Public Contracts Code”), intervening on various provisions of the code concerning: incentives for technical functions in favor of personnel holding managerial positions, advance payments for engineering services, minimum environmental criteria (CAM) for renovation works, procedures for the execution of works in cases of extreme urgency and for civil protection events, qualification certificates for the execution of public contracts, and the regulations governing the Technical Advisory Board for public contracts (Furthermore, a new Article 46-bis has been introduced into the Civil Protection Code, in order to regulate the procedures for the award of public contracts in the context of civil protection emergencies.)
d) amended the regulations governing motorway concessions
e) with regard to the port and maritime sector, updated the fees for concessions and intervened in the management of port areas
f) in view of the Milan-Cortina 2026 Winter Olympics, assigned special commissioner functions for the implementation of the necessary works and allocated contributions for major sporting events
g) amended the regulations concerning the identification of acceleration areas dedicated to renewable energy plants
h) amended the regulations on environmental impact assessment with respect to projects or parts of projects whose sole objective is national defense.
The main innovations in the field of public procurement and motorway concessions
The main innovations introduced by the Infrastructure Decree regarding public contracts and motorway concessions are as follows:
CAM for renovation works
The Infrastructure Decree, as amended during the conversion process, has established that the application of CAM in public contracts relating to categories of works concerning renovation interventions is no longer subject to the adoption of ministerial decrees by the Ministry of the Environment and Energy Security (MASE). Instead, such application shall occur directly on the basis of the CAM already provided for building interventions. This approach eliminates the need to await the adoption of further specific decrees for each type of intervention, thereby allowing for the immediate application of existing and consolidated CAM.
Price revision
The conversion law has taken into account the requests raised by operators, who had expressed concerns regarding the rules originally set forth by the Infrastructure Decree. The latter had, in fact, extended the application of the price revision regime, as provided for by Article 60 of the Public Contracts Code, also to contracts that:
a) on the one hand, would have been subject to the price revision introduced by Article 29 of Decree-Law No. 4/2022, known as the “Decreto Sostegni ter”, a regime which, however, was never actually implemented, as the necessary decrees for the detection of price variations were not adopted
b) on the other hand, could not benefit from the price update mechanisms provided for by Article 26 of Decree-Law No. 50/2022, known as the “Decreto Aiuti”.
Such extension, under the previous wording of the Infrastructure Decree, exposed the aforementioned contracts to the risk of a downward recalculation of amounts already paid for previous years. Article 60 of the Public Contracts Code, in fact, requires the inclusion in tender notices, calls for competition, and invitations, of specific price revision clauses, which are triggered upon the occurrence of certain objective conditions resulting in a variation, whether upward or downward, in the cost of the work, supply, or service.
To avert this risk, the conversion law expressly provides that downward variations may concern only those works performed or accounted for from 2025 onwards.
Transitional regime for the qualification of the private contractors
The legislator, with the recent amendment to the Public Contract Code, has established that companies may obtain a SOA qualification exclusively on the basis of works carried out directly, expressly excluding the possibility of considering, for qualification purposes, works awarded to subcontractors. Works performed under subcontract in separable categories may only be used to demonstrate the overall turnover.
This provision has caused discontent among the operators.
In light of these critical issues, the Infrastructure Decree has introduced a transitional regime for ongoing procedures, providing that the economic operators may continue to qualify by also using works not carried out directly, but awarded to subcontractors, in tenders for which the call for competition or notice was published before December 31, 2024, and in contracts without a call for competition where invitations were sent by December 31, 2024.
Amendments to the regulation of motorway concessions
The Infrastructure Decree introduces amendments to the regulation of motorway concessions as set forth in Chapter I of Law No. 193/2024 (Annual Law for the Market and Competition). In particular, it:
a) clarifies that the subentry value, understood as the indemnity owed by the incoming concessionaire, is provided for in cases where the duration of the concession is less than the period necessary for the recovery of amortization, or in the event of early termination of the concession, provided that such circumstances are not attributable to the outgoing concessionaire (In such cases, an indemnity equal to the unamortized book value, revalued according to ISTAT indices and net of any public contributions received in relation to the relevant investments, is provided.)
b) specifies that motorway concessions are subject to the tariff system defined by the Transport Regulation Authority (ART), which is structured to consider, in compliance with the principles established at the European level, a plurality of objective parameters, such as distance traveled, traffic flows, and the inflation index
c) introduces a transitional regime to allow the Ministry of Infrastructure and Transport (MIT) to immediately initiate new procedures for the award of expired or expiring concessions
d) provides that, for motorways not managed by the MIT, the same procedures for updating the financial plans (PEF) relating to concessions managed by the MIT shall apply, insofar as they are compatible, and that the granting authority remains obliged to indicate, in the draft agreement forming the basis of the award, the tariffs to be applied to the motorway, determined on the basis of the tariff system defined by the ART.
Considerations
The legislator has therefore intervened once again in the regulation of public contracts, only six months after the entry into force of the so-called “corrective” to the Public Contract Code which reformed the field of public contracts.
Through the Infrastructure Decree, the legislator has sought to address some of the most pressing needs that have emerged in recent months, such as the qualification of companies through works awarded by subcontract and the revision of prices. The aim is to strengthen the administrative and managerial capacity of the infrastructure and transport sector, promoting greater efficiency and transparency in the procedures for awarding and executing public works.
However, this legislative intervention also appears to be partial. The legislator has not seized the opportunity to resolve certain structural issues that risk undermining the balance and coherence of the entire regulatory framework. In particular, a significant disparity in treatment remains between service and supply contracts and works contracts. For example, the recent amendments regarding price revision have not been extended to services and supplies, for which mechanisms allowing only marginal recovery of inflation continue to apply. This exclusion has been considered particularly serious by sector operators, who hope for prompt corrective action by the government.
