L’affidamento dei servizi sociali e l’istituto della co-progettazione: il difficile coordinamento tra il Codice dei contratti pubblici ed il Codice del terzo settore nell’attesa delle nuove Linee Guida dell’ANAC

Abstract

The contractual activity of the public sector is divided in two phases: the phase aimed to find the best contractor, in which the Public Administration has authoritative powers, and the phase of stipulation of the contract (and its execution), in which the Administration has contractual powers. In the selection phase, in order to identify the best offer on the market, the public authority is obliged to carry out the procedures of the code of contracts (recte: d.lgs. n. 50/2016). These procedures, in order to identify the best offer in respect of the principles of impartiality and good performance, most ensure the freedom of competition. In the social services sector the situations of necessity often collide with these principles. For this reason, the legislator has introduced forms of exceptions to ordinary procedures, together with institutes aimed at launching experimental or innovative projects. The relevance of this sector also imposed an intervention by the ANAC, which, before d.lgs. n. 50/2016 and d.lgs. n. 117/2017, emanated the Guide-Lines n. 32/2016, in order to ensure compliance with the legislation (national and european) regarding public contracts and prevention of corruption. It is in this context that co-planning takes place, as an institution that allows the Public Administration to be assisted by third sector subjects in the search for the most suitable solutions to meet the social needs of the territory. If, at the beginning, this tool was limited to experimental and innovative projects, today, it assumes the role of a general-purpose institution, whose choice has left to the Administration. In this work, after tracing the reference regulatory framework and highlighting the main distinctions with the previous discipline, it will try to identify the issues and the concrete difficulties, waiting for the new ANAC Guide-Lines, of the subjects called to operate with these tools.