47688 - Public Contract Law

Learning outcomes

The aim of the course is to provide students with the theoretical-practical tools useful for achieving full knowledge of the legal structure that characterises public contracts (public procurement and concession contracts), as well as the more general dynamics that mark the subject matter (public contracts as a phenomenon of public expenditure, as an economic, social and environmental lever, as an event exposed to the risk of corruption). Through a critical approach to the rules set out in the legislative decree no. 36/2023, through the analysis of the most significant rulings and through the study of the specific rules provided by the Code of administrative procedure, students will be able to manage the physiological and pathological profiles of the award and execution phases of public contracts.

Course contents

1. The evolution of public procurement law
2. The goals of the public procurement event, between primary and secondary interests. Focus on: sustainable development
3. The qualification of contracting authorities and the digitization of the contract lifecycle
4. Below-threshold contracts: simplified procedures and the principle of rotation
5. Above-threshold contracts: the planning and design phases. Focus on: public debate
6. The call for tenders and its contestability
7. Ordinary award procedures
8. Negotiated award procedures. Case law analysis of the limits to the use of procedures without a call for tenders
9. Division into lots. "Avvalimento" and RTI
10. General and special requirements
11. "Soccorso istruttorio" and self-cleaning
12. Award criteria, evaluation of tenders and bid anomalies
13. The awarding and the contract. The standstill period and the powers of the judge on the ineffectiveness of the contract
14. The role of ANAC. Pre-litigation powers
15. Pre-contractual liability
16. The parties involved in the execution phase. Subcontracting, suspension, and extension
17. Modifications during execution. Focus on: renegotiation and price revision
18. Termination and withdrawal
19. Testing and verification of compliance. Payments
20. Public-private partnerships and concessions
21. Focus on: project financing
22. Public contracts in special sectors
23. Public contracts and damage to public finances: the damage from lack of competition
24. Public contracts and criminal cases

Readings/Bibliography

For attending students, besides studying the lesson material, we suggest consulting S. Fantini e H. Simonetti, Le basi del diritto dei contratti pubblici, Milano, Giuffrè, 2024

 

For non-attending students, we recommend studying one of the following books:

• S. Fantini e H. Simonetti, Le basi del diritto dei contratti pubblici, Milano, Giuffrè, 2024
• F. Mastragostino e G. Piperata (a cura di), Diritto dei contratti pubblici. Assetto e dinamiche evolutive alla luce del decreto legislativo n. 36 del 2023, Torino, Giappichelli, 2024
• R. Dipace, Manuale dei contratti pubblici, Torino, Giappichelli, 2023
• G. Tropea, Lineamenti di diritto dei contratti pubblici, Napoli, Editoriale Scientifica, 2024

Teaching methods

The course will consist of classroom lectures and the analysis of legal cases.

Assessment methods

The interview will focus on the topics indicated in the "Contents" section.

The evaluation of the test will be carried out taking into consideration:

- The knowledge of legal profiles

- The ability to make connections between the different parts of the program

- The ability to develop critical arguments

- The articulation of the exposure

- The accuracy of the exposure.

The following criteria will be used to assign the final mark (that will be out of 30/30):

• knowledge of a very limited number of topics, extensive support by the interviewer to address and answer the questions, basic yet appropriate language  18-19/30;
• knowledge of a limited number of topics, ability to autonomously address basic legal problems, use of appropriate language → 20-24/30;
• comprehensive knowledge of the programme, ability to autonomously and critically analyse legal problems, use of specific terminology → 25-29/30;

• extensive knowledge of the programme, ability to reason autonomously and critically analyse legal problems, make connections between the topics, ability to master the specific terminology and ability to present legal arguments. → 30-30L/30.

Registration for the final exam can be made through the application Almaesami (https://almaesami.unibo.it/almaesami/welcome.htm )

Teaching tools

Students who need compensatory tools for reasons of disability or Specific Learning Disabilities (SLD) will communicate to the teacher their needs in order to be directed to the dedicated person and in order to arrange for the adoption of the most appropriate measures.

Office hours

See the website of Enrico Guarnieri