DIRITTO E POLITICA DEI TRASPORTI (ISSN 2612-5056), II/2021, p. 118 – 142
Public-private interest balancing in the performance of public procurement contracts. Possible remedies in
case of mutual breach.
Public agreement is governed by a complex regulatory system which finds its sources both in public law and
in civil law. The Italian legislator, under European pressure, has over time produced a series of disorganic
and uneven provisions, so much so that the procurement sector has been affected by numerous laws,
corrective and soft law interventions all issued in a very short period of time. Public agreement is strategic
for a country’s economy, therefore the rules for participation in public competitions and the execution of the
contract must be clear and above all must ensure immediate remedies in the case of pathology of the
negotiating report. Only by pursuing this aim will the public procurement system become a driving force for
the internal economy. The balancing of the public-private interests claimed by the contractors in the light
of the provisions applicable to the case is currently left to the interpreter. The contribution proposes
reflections on the solutions adopted by the “living law” functional to overcome the current layered and
disorganized regulatory impasse.