Co-planning and PNRR: is it possible to implement infrastructure measures, such as the renovation of a Third Sector entity's building?

The Italian Ministry of Labor and Social Policies published, on 7 July 2023, the Note No. 1059, in which it provided some clarifications regarding the implementation of the interventions related to the Measures of "Inclusion and Cohesion" (public notice No. 1/2022 PNRR), with specific reference to the use of the co-planning institution under Article 55 of Legislative Decree No. 117/2017 (Third Sector Code). The Ministry has provided a series of important interpretative elements, which can be extended also to others initiatives, not financed by the PNRR.

As is well-known, the PNRR (Mission 5, Component 2) is directed at, among other things, financing social infrastructure for families and communities and includes, among the activities that can be financed, the realization of infrastructural interventions.

Following a request for clarification received from a number of Third Sector entities, the Ministry clarified that to implement a financed project it is allowed to use the co-planning scheme trough which it is also possible to renovate and/or requalify the building used or owned by the Entity itself. The condition is that the property to be renovated/requalifaied must be used, exclusively, for the activity covered by the project, since the "teleological framing of the interventions" suggests that the project could be ineffective without a location where it can be carried out.

The renovation must, therefore, be the "precondition" for the implementation of the financed project. In this case, using the co-planning scheme is permitted.

This brings up the issue regarding the execution of the renovation works, considering that the Third Sector entity, by its nature, both institutional and organizational, is not an entity dedicated and suitable for this purpose. The work must, therefore, necessarily be commissioned to a third-party company.

In this light, should the Third Sector entity, then, be qualified as a contracting authority, according to current regulations, with the consequent requirement to apply the Public Contracts Code? The Ministry affirms that Third Sector entities are not contracting authority, but suggests that, due to the public nature of the financing, directed to cover the works, they should adopt procedures based on the principles set forth in the aforementioned Public Contracts Code (publicity, transparency, impartiality, equal treatment, competition, result), following previous Ministry documents (Circular No. 2 of February 2, 2009), regarding ESF (1).

All the above both in the hypothesis of a public property, at the disposal of the Third Sector entity, and in the different case of a property owned directly by the Third Sector Entity.

Since the Pubblic Contract Code is not applicable in this case, there is no need for insurance coverage, although this is obviously recommended, while it must be considered applicable - for interventions financed with PNRR resources - Article 47 of Decree Law No. 77/2021 on equal opportunities and labour inclusion.

The Ministry also reminds that co-planning interventions are not practicable when Public Administrations have already pre-determined the project elements and the activities to be carried out. If this were the case, the active involvement of the Third Sector Entities would be missing, and the intervention would no longer be "the ex post result of a plural contribution from different subjects who participated in the co-planning table, but the expression of an ex ante assessment unilaterally made by the P.A."

In the latter case, the Administration must proceed by contracting the specific services, which is an alternative instrument to the co-planning (in this sense see also the Consiglio di Stato judgment no. 2677/2022 and the TAR Parma judgment 294/2022).

There is, therefore, co-planning only where there is an active involvement of the Third Sector entities, with the warning that lump-sum reimbursements are not allowed in the conventions (Consiglio di Stato judgments no. 5217 and 5217 of 26 May 2023).

The Ministry has announced the imminent publication of a Handbook for entities that will execute interventions financed by the PNRR, which will also include useful guidelines for the arrangement of reporting and expense justifications.

While waiting for such, further, clarifications, it seems appropriate for non-profits entities, which are planning to be involved in PNRR-funded projects, to carry out a detailed analysis of the current regulations, if necessary contacting professionals specialized in this sector.

Avv. Cristina Bassani

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(1) European Stability Fund