Prologue
All the revisional clauses, “more or less cumbersome” contained in public contracts cannot deviate, under penalty of nullity, from the provisions of articles 7 and 115 of Legislative Decree 163/06, having the nature of mandatory rules, requiring replacement automatic of the null clause “…with the generalized use, for the purposes of revision, of the Istat-Foi index”.
It is established there Court of Cassation, section. I, heard. 3 April 2024 n. 8718
The case
The dispute that came to the attention of the Supreme Court of Cassation referred to an assignment concerning the maintenance and management service of municipal public lighting systems.
The applicable discipline ratione temporis in this case is that contained in Legislative Decree 163 of 2006.
The contract provided for the price revision clause, establishing a revision mechanism with two distinct percentages relating to two distinct contractual items: the first relating to the modernisation, adaptation, management and maintenance of costs; the second relating to the cost of electricity.
The Court of Cassation, ruling on the cumbersomeness of the revision clause, came to establish that in such cases the FOI index must be applied instead – due to the partial nullity of the clause.
The decision
The decision under review starts from the content of the revision clause provided for by the art. 23 of the CSA (special appeal specifications) which, for the purposes of reviewing the amount to be paid to the company annually, provided «In any case, the contractual fee will be adjusted annually. For this purpose, it is conventionally established that the annual fee can be divided as follows in percentage: a) adaptation, modernization, management and maintenance: 50%; b) cost of electricity: 50%. As regards the portion of the fee relating to the management and maintenance of the systems, starting from the second contractual year, the contracting company may request the adjustment of the affected price based on the change in the FOI-ISTAT index – Consumer prices for families of workers and employees relating to the previous year if the data referred to in the art. are not available. 7, paragraph 4, letter c), and paragraph 5 of Legislative Decree no. 163/06. As regards electricity prices and the power fee due for the amount of power used, reference will be made to the weighted average cost in force in the reference year. […] For price adjustments, reference will be made to the prices in force at the time of the offer. If any preferential rates charged to the EA are recognized to the contractor [n.d.r.: prezzo dell’energia elettrica aggiornato]the annual fee will be automatically adjusted according to the formula above with the warning that “E” will be the price corresponding to these subsidized rates and “Eo” will be the current market price”.
The Court of Cassation confirms that in the present case there is a clause for the revision of the amount of the annual fee which is “more or less cumbersome”, as it is divided into two separate parts: a first portion (equal to 50%) is identified in the change in the Istat-Foi index; a second portion, concerning «electricity prices and the power fee due for the quantity of power used» is determined «with reference to the weighted average of the cost in force in the reference year».
The judges of the Supreme Court addressing the case establish how since the art. 7 of Legislative Decree no. 163 of 2006 has not been implemented, due to the revision of the contract price in subject matter the price change index for families of workers and employees must be used (FOI index).
In fact, the aforementioned regulation established that «for the purpose of determining the standardized costs referred to in paragraph 4, letter c), Istat, making use, where necessary, of the chambers of commerce, takes care of the detection and processing of the market prices of the main goods and services purchased by the contracting authorities, providing a comparison, on a statistical basis, between the latter and market prices. The lists of prices recorded are published in the Official Gazette of the Italian Republic, at least every six months, by 30 June and 31 December. For IT products and services, where the nature of the services allows the detection of market prices, these surveys are carried out by Istat in concert with the National Center for IT in public administration pursuant to Legislative Decree 12 February 1993 , n. 39″.
On the basis of these regulatory dictates, the Court of Cassation establishes that the FOI index marks the maximum limit which, except in the exceptional circumstances which the company is burdened with proving, the contracting authority cannot violate in determining the audit fee, as the function of the The aim of the institute is precisely to prevent the fees for long-term contracts from undergoing uncontrolled increases such as to upset the financial framework on which the award and stipulation took place.
Therefore, the Court of Cassation concludes in the event that a price revision clause is inserted in the procurement contract, which is contrary to the provisions of articles 7 and 115 of Legislative Decree no. 163 of 2006, after the declaration of nullity of the same, the replacement is carried out by law using the Istat-Foi discipline.
Tags: Price revision clauses void cumbersome case replacement IstatFoi regulations
