Contract Code: news and blockchain for guarantees

The reductions in guarantees, provided for in the draft of the new contract code are numerous and very much in favor of a general easing of the burden that these may place on obligated companies.

The choice to simplify life, but also to make less incisive-in economic terms-the costs that such obligations entail for companies, seems to have prevailed in no small part in the drafting of the code update at the expense of protecting public finances.

It will be useful to recall that the principle put in place by the "Merloni" Law of 1994 and the subsequent "De Lisi" Code of 2006 was to create safeguards for public finance by taking as a reference the current legislation, Royal Decree No. 827 of 1924 with particular emphasis on Article 54, which states, "According to the quality and importance of the contracts those who contract obligations to the State must provide real and valid security in cash, or in government bonds or government-guaranteed bonds, at the stock market value. A security in the form of surety may be accepted"(https://www.rgs.mef.gov.it/_Documenti/VERSIONE-I/Selezione_normativa/R-D-/RD23.05.24.pdf).

Said preamble is necessary to clarify that the need to support bids and contracts with the P.A. through the use of surety bonds is not a florid or even a quirk of some legislator or the draftsman of the measures, but rather a fundamental counterbalance to the sustainability of public finance where exposed in dealings with private parties.

For this reason, as well as for professional inclinations, the direction by which the guarantees provided in the current version of the code, which has already been the subject of numerous changes made by emergency legislation in the "covid era" and confirmed in the immediate aftermath of the pandemic, are being drastically cut.

Paragraph 8 of Article 106 of the latest version of the proposed amendment to the Contract Code provides a 50 percent reduction tout court in favor of micro, small and medium-sized enterprises. This paragraph effectively halves all guarantees before even considering further reductions in the presence of the various quality certifications.

In the past, we have had the opportunity to verify that this process of waiving guarantees generated massive access to procedures, unloading on P.A. a burden to which these entities were not ready. The market for surety guarantees constituted, in fact, a filter for access to procedures: for companies interested in public contracts, passing the examination of the analysts in charge of issuing guarantees represented an important test to pass. Certainly this cannot constitute an absolute selective factor; it would turn into a cession of prerogatives that must remain the exclusive property of the public administration. But access to surety bonds, as well as access to credit, remains an important evaluation requirement for economic operators.

Significant and also innovative is the reference to new technologies and Blockchain as a means of ensuring the genuineness of sureties by sheltering them from fraud. In fact, in the same paragraph 8 there is a passage that allows an additional 10 percent reduction for guarantees issued digitally. The paragraph reads, "The amount of the guarantee and its renewal, if any, is reduced by 10 percent, which can be combined with the reduction referred to in the previous sentence, when the economic operator submits a surety, issued and signed digitally, which is managed through the use of platforms operating with technologies based on distributed registers in accordance with paragraph 3."

The reference is to the previous paragraph that requires issuance with digital signature and the possibility of telematic verification through platforms operating with technologies based on registers that comply with Law No. 12 of 2019, which converted into law all the characteristics established by AgID - Agenzia per l'Italia Digitale.

In fact, a platform for digitizing surety bonds has been developed by Cetif Advisory , the university technology transfer spin-off to translate academic research results into action.

The Cetif, last December, organized an event titled "Digital Sureties Platform: General Presentation and Roadmap Demo Sessions" attended by Bank of Italy and IVASS as well as Banks, Insurance Companies, Companies and Contracting Stations. During the 4-month trial period, 50 operators were involved in Sandbox "Digital Sureties" launched with the aim of building a platform based on Blockchain/DLT technology for issuing and managing the surety relationship through a natively digital and secure process.

Let's say that among the reductions provided by the planned code maintenance amendments, this 10 percent reduction attributable to innovation is probably the one that best corresponds to market needs. The scams attributable to forgeries that plague the warranty sector, which-it should be remembered-is worth almost a billion in premiums, is an atavistic evil that must be fought with controls and, above all, with innovations. Therefore, facilities aimed at encouraging innovation are welcome.

Less agreeable, especially with regard to the protection of public finance, is the reduction of guarantees without any evaluation or technical counterpart that could balance this concession. A veritable handout that-if not remedied-the Legislature is about to make to operators without any concrete benefit to the public administration.