Brief Notes on modifications of public contracts in Italy

The paper analyses the modifications on the cost of public works and services, compared with the contract provisions. Different matters bring to relevant changes in contract execution: new facts that have occurred, unknown circumstances and new law; even the change of public needs can bring to a contractual variation. The issue of variations is linked to the quest for the best reconciliation between the conservation of the binding constraint and the need (or opportunity) of adapt the performance to the provisions or circumstances occurring, or changing them in a way more satisfactory for the public authority. The question is not easy to solve mainly because the variations are fundamental element of the contract of procurement. On the first hand there is the need of strict application of the contract: the contractor doesn’t want to pay unexpected expenses, and, on the other hand, he wants to perform the project for which his offer and enterprise is already organized. In the opposite direction drives the need to adapt performances to unpredictable events and as well as the need to adapt the work (of goods or services) to the evolution of the technology available and to new rules of art. The statutory boundaries of the concept of variation mark also the limits within which the modifications of the original object is still part of the performance, next to the rule of the invariability of the work, which prevents running variations not agreed. The public Authority, by the principles of good faith and sincere cooperation, must accept variations that are essential to the best performance of the work as well as those which are necessary to lift the company from professional liability. As we all know, this events are common mode of circumvention of European rules; national legislation, on the one hand, tends to limit the scope for discretionary choice at any stage of the public procurement. EU law, on the other hand, aims to realize the competitive dynamics in this market. A ban or severe restrictions on the variations, might conflict with the nature of the contract which, in its typical pattern, necessarily includes this possibility. It is also very difficult to monitor all the public contracts during the execution, mostly because the competitors no longer have any information about the correct fulfilment of the contract. On these issues it would be useful to analyse the best practices to prevent that changes in contract execution can determine serious circumvention of the rules and may be easy opportunity for collusion. Useful information comes from statistics relating to variations during the execution of the contract and from the criminal law sector.

L'articolo analizza la disciplina in tema di varianti in corso di esecuzione ed il problema dell'innalzamento dei costi nella fase esecutiva dei contratti. Si oppongono due opposte esigenze: quella di conservare il contenuto concordato e quella di adattare l'adempimento alle mutazioni intervenute successivamente come anche alle mutate esigenze della pubblica amministrazione.