Following the health emergency, the contracting authorities, with regard to service and supply contracts, may proceed with changes to the contractual relationships in progress within the limits indicated in art. 106 of the public procurement code. This is what ANAC stated in the recent opinion no. 37 of 13/09/2022, which, in particular, reads:
“The call for tenders, the tender specifications and the special tender specifications, constitute on the whole the lex specialis of the tender and are binding for competitors and the contracting authority (…)”
For the above, the provisions of the lex specialis cannot be disregarded either by the economic operators or by the contracting authority, requiring the correspondence between the tender put out to tender and the one executed.
The procurement code, however, provides for a derogation, in specific and mandatory cases established by art. 106, which contemplates, in paragraph 1, lett. a), the possibility of proceeding with the price revision, provided that the same has been provided for in the tender documents ” in clear, precise and unambiguous clauses ”.
Even the most recent regulatory interventions on the subject confirm this possibility:
Art. 29 of decree 4/2022 with regard to the award procedures launched after its entry into force, establishes “until 31 December 2023, in order to incentivize public investments, as well as in order to cope with the negative economic effects following the of containment and the global health emergency deriving from the spread of the Covid virus “the obligation to include, in the initial tender documents, price revision clauses.