New DURC of adequacy for the construction sector and sanctioning consequences

The institute of the DURC of adequacy has recently been envisaged, the creation of which is aimed at ensuring the regularity of the management of contracts (both public and private, albeit with different requirements for one or the other case) with particular reference to the fulfilments that, daily, those involved are called upon to meet to maintain a position of compliance with the regulations in force. 

The provisions of Sec. 8, par. 10-bis of Decree-Law no. 76/2020 (converted into Law No. 120/2020 and amended by Decree no. 143/2021) has been in force since November 1st, 2021. The content of these regulations introduced the new adequacy Single Document of Contributive Regularity (DURC), aimed at combating irregular labour in contracts as well as the so-called "contract dumping" (i.e., the application of NCLAs other than the construction one, with the consequent detriment of the economic and normative treatment of employees and, ultimately, of regular competition).

The obligation to strive for its obtainment arises in the case of private companies operating in the context of construction sites with a value exceeding EUR 70,000, as well as those who perform their activities in the field of public contracts (without minimum thresholds of construction site value).

In the case of contracts of a private nature, the request for the issuance of the DURC of adequacy must be made before the disbursement of the final balance by the commissioning company and, therefore, after the work is finished and at the time of the closure of the construction site. Where, on the other hand, the construction site is for public work, the adequacy of the incidence of labour on the overall outcome is requested by the client or the contracting company when the company submits the final progress report before the final balance of the work is disbursed. In any case, the document issuance is subject to verification of the data provided by the companies involved and the outcome of a mere compilation activity of daily work within the construction site. There is a tendency to recommend its continuous updating, considering the individual days of work and the daily contribution the different companies provide.

From a practical point of view, the achievement of these objectives is provided for by current legislation through the verification, carried out by the territorially competent Construction Funds, of the correspondence between the cost of labour incurred by the employer for the workforce employed and the minimum fairness indexes referred to the individual categories of work; the latter elements are set out in the Table attached to the Collective Agreement of the construction sector, dated September 10, 2020.

To correctly match the data of the worksite of reference with those of the table mentioned above, the commissioning company (which is the only one responsible for the adequacy to be reached) is required to declare to the territorially competent Cassa Edile (i.e., the implementing agency for contracts and collective agreements concluded between employer associations and works council), through the relevant online portal the following data: the date of opening, the value of the total work, the elements of the commissioning company, the details of subcontractors, subcontracted firms, as well as self-employed workers if any. In turn, the companies involved will have to indicate, in their monthly report, the hours of labour performed at the specific worksite of reference to feeding the adequacy meter visible by the contracting firm.

To prevent potential offences, the latest legislative provisions provided for the establishment of a Convention between the institutions involved (INL, the competent Ministry, INPS, INAIL and CNCE), as well as the creation of a shared database that allows access to the outcomes of the checks on the adequacy requirements and all related elements. These indicators will then be used to carry out the relevant social security and insurance recoveries and plan any supervisory activities and audits within the competence of INL (the National Employment Inspectorate).

In this regard, an additional agreement (on March 11, 2021) has been signed between the INL and the National Commission of Construction Funds - Edilcasse (CNCE), which provides, among other things, an exchange of information and data between the two institutions. This agreement aims to ensure the transparency and fairness of those operating in the market, preventing contractual dumping and irregular labour.

In addition to the above, a National Observatory was established at the Ministry of Infrastructure and Sustainable Mobility (MIMS) on October 25, 2021, which is entrusted with the task of supervising the application of the new legislation on the DURC of adequacy as well. This Observatory includes representatives of the Italian Government, major public contracting stations and the most representative trade unions in the construction industry. The initiative aims at ensuring the best health and safety standards in implementing the National Recovery and Resilience Plan (NRRP).

Following the assessments of the data provided by the contracting company and confirming the adequacy between the resources used and those appropriate for a construction site of the indicated value, the territorially competent Construction Fund will issue the proper certificate within ten days from the submission of the relevant application.   

Otherwise, should any inconsistency be found, the Construction Fund will contact the contracting company and allow it to supplement or amend the documentation provided within a maximum of 15 days to prove the achievement of the percentage through any costs not recorded. Where the deviation is 5% or less from the customarily expected values, however, the company will still be found to be in order upon submission of certification from the Construction Manager justifying the deviation.

If even at the outcome of any such integrations or amendments, the territorially competent Cassa Edile deems the additional documentation provided to be insufficient for issuing the relevant document certifying the adequacy to the parameters in force, the adequacy DURC will not be issued, and this negative assessment will affect the issuance of subsequent ordinary DURCs. In addition, the competent Construction Fund will proceed to register the company in the BNI (National Bank of Irregular Companies), with the possibility that it may also stop working activities on other construction sites. Finally, in the event of failure to issue a DURC of adequacy, bodies within the supervisory system in charge will be alerted about such outcomes, thus giving potential input to further control processes on the activity carried out by the irregular party.