Contracting authorities may be faced with situations where additional works, supplies or services become necessary. It is not generally permitted for a contracting authority and an economic operator to agree to change an existing contract. In fact, a new procurement procedure is required in case of material changes to the initial contract, in particular to the scope and content of the mutual rights and obligations of the parties. On the other hand modifications to the contract resulting in a minor change of the contract value up to a certain value should always be possible without the need to carry out a new procurement procedure. The italian public procurement law has also provided the rule of the so called “fifth of obligation”. This rule contains the right of the administration to require the performance of additional services without the need for the consent of the economic operator who can not refuse. Historically this clause has already been provided for by law n. 2448/1865. In the current version it is said that where, in the course of performance, an increase or decrease in performance of up to one fifth of the amount of the contract is necessary, the contracting authority may require the contractor to perform under the same conditions as those laid down in the original contract. In such a case, the contractor may not invoke the right to terminate the contract. The aim of this paper is to outline some interpretative aspects that have been set on the application of this rule following the entry into force of the new public procurement law. The question is whether this rule is additional to the cases provided for in the Eu directives or represents a further case in which contractual amendments are allowed. It is also a question of whether this rule can be derogated from by contractual clauses.

Le modifiche oggettive nei contratti pubblici e il diritto potestativo nel quinto d’obbligo

crismani
2019-01-01

Abstract

Contracting authorities may be faced with situations where additional works, supplies or services become necessary. It is not generally permitted for a contracting authority and an economic operator to agree to change an existing contract. In fact, a new procurement procedure is required in case of material changes to the initial contract, in particular to the scope and content of the mutual rights and obligations of the parties. On the other hand modifications to the contract resulting in a minor change of the contract value up to a certain value should always be possible without the need to carry out a new procurement procedure. The italian public procurement law has also provided the rule of the so called “fifth of obligation”. This rule contains the right of the administration to require the performance of additional services without the need for the consent of the economic operator who can not refuse. Historically this clause has already been provided for by law n. 2448/1865. In the current version it is said that where, in the course of performance, an increase or decrease in performance of up to one fifth of the amount of the contract is necessary, the contracting authority may require the contractor to perform under the same conditions as those laid down in the original contract. In such a case, the contractor may not invoke the right to terminate the contract. The aim of this paper is to outline some interpretative aspects that have been set on the application of this rule following the entry into force of the new public procurement law. The question is whether this rule is additional to the cases provided for in the Eu directives or represents a further case in which contractual amendments are allowed. It is also a question of whether this rule can be derogated from by contractual clauses.
2019
gen-2019
Pubblicato
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Utilizza questo identificativo per citare o creare un link a questo documento: https://hdl.handle.net/11368/2942570
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