Article 209. Amendments to the administrative process code referred to in Annex 1 to Legislative Decree 2 July 2010, n. 104.

1. To the code of administrative proceedings, referred to in annex 1 to the legislative decree of 2 July 2010, n. 104, the following amendments are made: a) article 120 is replaced by the following: «Art. 120 – (Specific provisions for the proceedings referred to in article 119, paragraph 1, letter a)) – 1. The documents of the award and concession procedures governed by the public contracts code, referred to in the legislative decree implementing law 21 June 2022, n. 78, including the procedures for assigning design tasks and competitions and related technical-administrative activities, which are related to public works, services or supplies, as well as the provisions of the National Anti-Corruption Authority regarding public contracts, are contestable only by appeal to the competent regional administrative court. The tender identification code (CIG) is indicated in all party documents and in all judge orders; in the event of failure to indicate, the judge proceeds in any case and also ex officio, upon notification from the secretariat, pursuant to article 86, paragraph 1. 2. For the challenge of the acts referred to in this article, the main appeal or incidental, and the additional reasons, even against acts other than those already contested, are proposed within thirty days. The deadline starts, for the main appeal and for the additional reasons, from the receipt of the communication referred to in article 90 of the public contracts code, referred to in the legislative decree implementing law no. 78 of 2022 or from the moment in which the documents are made available pursuant to article 36, paragraphs 1 and 2, of the same code. For calls and notices announcing a tender that are independently harmful, the deadline starts from the publication referred to in articles 84 and 85 of the public contracts code, referred to in the legislative decree implementing law no. 78 of 2022. The incidental appeal is governed by article 42. 3. In the event that the tender notice has not been advertised, the appeal is in any case brought within thirty days from the date of publication of the award notice or the determination to proceed to in-house assignment to the participated or controlled entity. For the deadline to start, the notice must contain the motivation for the award and the choice to award the contract without publication of the notice and the indication of the site where the required deeds and documents can be viewed. If the notices or information referred to in this paragraph are omitted or if they do not comply with the requirements indicated therein, the appeal may be brought no later than six months from the day following the date of stipulation of the contract communicated pursuant to the public contracts code , referred to in the legislative decree implementing law no. 78 of 2022. 4. If the contracting authority or the granting body is represented by the State Attorney's Office, the appeal is also notified at the headquarters of the Administration, for the sole purpose of the operation of the mandatory suspension of the deadline for the stipulation of the contract. 5. If the parties jointly request to limit the decision to the examination of a single issue, as well as in any other case compatibly with the defense needs of all the parties in relation to the complexity of the case, the judgment is normally defined, also in derogation of paragraph 1, first sentence, of article 74, following the precautionary hearing pursuant to article 60, where the conditions are met, and, failing that, it is in any case defined with a simplified sentence a hearing scheduled ex officio, to be held within forty-five days from the expiry of the deadline for the appearance of the parties other than the appellant and in compliance with the deadlines for the filing of documents and briefs. The parties will be immediately notified of the date of the hearing by the secretariat, via certified email. In the event of investigative needs or when it is necessary to integrate the cross-examination or ensure compliance with defense deadlines, the definition of the merits is postponed, with the order that arranges the preliminary obligations or the integration of the cross-examination or provides for the postponement for the requirement to respect the deadlines for the defence, at a hearing to be held no later than thirty days. 6. In the event of a precautionary request, at the end of the hearing in chambers and also in the event of rejection of the request, the judge will carry out the necessary investigative investigations. 7. The new documents relating to the same tender procedure are contested with an appeal for additional reasons, without payment of the unified contribution. 8. Except as provided in this article and in articles 121 to 125, article 119 applies. 9. Even if no effects arise from the decision on the precautionary application irreversible, the panel may subordinate the granting or denial of the precautionary measure to the provision, also through a surety, of a deposit of an amount commensurate with the value of the contract and in any case not exceeding 0.5 percent of this value. The duration of the measure subject to bail is indicated in the order. The provisions of paragraph 3 of article 119. remain unchanged. In the precautionary decision, the judge takes into account the provisions of articles 121, paragraph 1, and 122, and the imperative needs connected to a general interest in the execution of the contract, giving an account of it in the motivation. 11. The judge files the sentence with which he defines the judgment within fifteen days of the discussion hearing. When the drafting of the motivation is particularly complex, the judge publishes the ruling within the deadline referred to in the first period, also indicating any requests accepted and the measures to implement them, and in any case files the sentence within thirty days of the hearing. 12. The provisions of paragraphs 1, second sentence, 5, 6, 8, 9, 10 and 11 also apply before the Council of State in the appeal proceedings brought against the sentence or against the precautionary order, and in revocation or opposition proceedings third. The party can appeal against the provision to obtain its suspension before the publication of the sentence. 13. In the case of submission of offers for multiple lots, the appeal is brought with a cumulative appeal only if identical grounds of appeal are raised against the same act."; b) article 121 is replaced by the following: «Art . 121 – (Ineffectiveness of the contract in cases of serious violations) – 1. The judge who cancels the award or assignments without notice referred to in paragraph 2 of article 120 declares the ineffectiveness of the contract in the following cases: a) if the award took place without publication of the notice or notice announcing a tender in the Official Journal of the European Union or in the Official Journal of the Italian Republic, when such publication is required by the public contracts code, referred to in the implementing legislative decree of law no. 78 of 2022; b) if the award took place with a negotiated procedure without a tender or with economic award outside the permitted cases and this led to the omission of the publicity of the tender or notice with which a tender is announced in the Official Journal of the European Union or in the Official Journal of the Italian Republic, when such publication is required by the public contracts code, referred to in the legislative decree implementing law no. 78 of 2022; c) if the contract was stipulated without respecting the dilatory deadline established by article 18 of the public contracts code, referred to in the legislative decree implementing law no. 78 of 2022, if this violation prevented the appellant from availing himself of legal remedies before stipulating the contract and provided that such violation, in addition to defects inherent in the award, affected the appellant's chances of obtaining the assignment; d ) if the contract was stipulated without respecting the mandatory suspension of the deadline for stipulation resulting from the filing of a judicial appeal against the award, pursuant to article 18, paragraph 4, of the public contracts code, referred to in the legislative decree of implementation of law no. 78 of 2022, if this violation, in addition to defects inherent in the award, has influenced the appellant's chances of obtaining the assignment. 2. The judge specifies, based on the parties' deductions and the assessment of the seriousness of the station's conduct contracting body or the granting body and the factual situation, if the declaration of ineffectiveness is limited to the services still to be performed on the date of publication of the device or if it operates retroactively. 3. The contract remains effective, even in the presence of the violations referred to in paragraph 1, if it is ascertained that compliance with imperative needs related to a general interest requires that its effects be maintained. The imperative needs include, among other things, the unavoidable ones of a technical or other nature, such as to make it clear that the residual contractual obligations can only be respected by the current executor. Economic interests are taken into consideration as mandatory needs only when the ineffectiveness of the contract would lead to disproportionate consequences, also taking into account the possible failure to submit the request to take over the contract in cases where the defect in the award does not entail the obligation to renew the race. The economic interests directly linked to the contract do not constitute mandatory requirements, which include, among other things, the costs deriving from the delay in the execution of the contract itself, from the need to launch a new award procedure, from the change of the economic operator and from the obligations of law resulting from the declaration of ineffectiveness. 4. By the secretariat, the sentences that apply paragraph 3 are transmitted to the Presidency of the Council of Ministers - Department for European Policies. 5. When, despite the violations, the contract is considered effective or the ineffectiveness is temporally limited, the alternative sanctions referred to in article 123. 6 apply. The ineffectiveness of the contract provided for in paragraph 1, letters a) and b), does not apply when the contracting authority or the The granting body followed the following procedure: a) with a reasoned deed prior to the start of the award procedure, it declared that the procedure without publication of the notice or notice announcing a tender in the Official Journal of the European Union or in the Official of the Italian Republic is permitted by the public contracts code, referred to in the legislative decree implementing law no. 78 of 2022; b) respectively for contracts of European relevance and for those below the threshold, has published in the Official Journal of the European Union or in the Official Journal of the Italian Republic a voluntary notice for preventive transparency pursuant to article 86 of code of public contracts, referred to in the legislative decree implementing law no. 78 of 2022, in which he expresses his intention to conclude the contract; c) the contract was not concluded before the expiry of a period of at least ten days starting from the day following the date of publication of the notice referred to in letter b ).»; c) in article 123, paragraph 1, paragraph, the words: «referred to in article 121, paragraph 4» are replaced by the following: «referred to in article 121, paragraph 5»; d ) article 124 is replaced by the following: «Art. 124 – (Protection in specific and equivalent form) – 1. The acceptance of the request to obtain the award and stipulate the contract is in any case conditional on the declaration of ineffectiveness of the contract pursuant to articles 121, paragraph 1, and 122. If he does not declare the contract ineffective, the judge orders compensation equivalent to the damage suffered and proven. The judge also knows about the compensation and compensation actions proposed by the contracting authority against the economic operator who, with illicit behaviour, contributed to determining an illegitimate outcome of the tender. 2. The procedural conduct of the party who, without justified reason, has not proposed the request referred to in paragraph 1, or has not made itself available to take over the contract, is assessed by the judge pursuant to article 1227 of the civil code. 3. Pursuant to article 34, paragraph 4, the judge identifies the criteria for liquidating damages and assigns a deadline within which the damaging party must formulate a compensation proposal. The failure to formulate the proposal within the assigned deadline or the significant difference between the amount indicated in the proposal and that paid in the sentence rendered on any compliance judgment constitute evaluative elements for the purposes of regulating the litigation costs in such judgment, without prejudice to the provisions from article 91, first paragraph, of the code of civil procedure.». EFFECTIVE FROM: 1 July 2023