Fair compensation and engineering tenders: the picture after the corrective decree

Law No. 49 of 21 April 2023 on fair compensation extends its provisions, under Article 2(3), to services rendered by professionals to the public administration as well, subject to the exclusions set out therein. In the field of public contracts, however, the special rules of the Code apply: Article 8(2) of Legislative Decree No. 36 of 31 March 2023 provides that the public administration ensures the application of the fair-compensation principle in accordance with the arrangements set out in Article 41, paragraphs 15-bis, 15-ter and 15-quater — paragraphs inserted by Article 14 of the corrective decree (Legislative Decree No. 209 of 31 December 2024). For contracts awarded on the basis of the most economically advantageous tender identified by the best quality/price ratio under Article 108(2)(b) — that is, engineering and architecture services and other services of a technical and intellectual nature worth 140,000 euro or more — 65 per cent of the amount takes the form of a fixed price, not subject to reduction; the remaining 35 per cent may be reduced in the tender; the score for the economic offer is determined under the non-linear calculation method set out in Article 2-bis of Annex I.13 and cannot exceed the 30 per cent cap on the overall score. Paragraph 15-ter expressly leaves unaffected the provisions on the exclusion of abnormally low tenders under Article 54(1), third sentence. For direct awards below 140,000 euro (Article 50(1)(b)), the fees determined under Annex I.13 may be reduced by no more than 20 per cent. The rules are not retroactive: the procedure remains governed by the legislation in force on the date the notice was published, so paragraphs 15-bis et seq. do not apply to tenders called before 31 December 2024, the date the corrective decree entered into force; the same criterion applies to framework agreements and to implementing contracts signed afterwards (ANAC, advisory opinion No. 16 of 16 April 2025).

The point of friction is precisely the reducible 35 per cent: how far the reduction can go without undermining the sustainability of the tender. In practice, for the professional the tender must be built and justified item by item on the reducible portion alone, without touching the fixed-price 65 per cent; for the contracting authority, the tender documents must clearly distinguish the two portions from the notice onward and state the cap on the economic score. On the reducible portion the rule sets no percentage limit on the reduction: the safeguard against unsustainable tenders is not a cap but the adequacy check, which paragraph 15-ter expressly leaves unaffected. The Council of State, Special Commission, in advisory opinion No. 1463 of 2 December 2024 on the draft corrective decree, stated that the fair-compensation rules under Law No. 49/2023 do not apply to public contracts, given the special rules in force. That position was confirmed in litigation by the Council of State, Fifth Section, judgment No. 844 of 3 February 2025, which characterises fair compensation as the general principle set out in Article 8(2), spelled out in detail by the rules in Article 41. However, the 65 per cent guarantees only the base of the compensation, not the outcome of the tender: the full compression of the reducible portion remains the subject of open litigation.

Summary note by the CommercialistiAvvocati network, based on specialised legal and practice sources. The text does not reproduce original contributions and does not constitute professional advice.