Amendment of the Public Procurement Code: conflicts between National Anticorruption Authority and Italian Court of Auditors over the Article 38, par. 2-bis.

Decree Law no. 90/2014 introduced to the Italian Public Procurement Code significant changes based on principles of streamlining of procedural flows and transparency pursuant to the Public Procurement Directives.

Among the new amendments, the simplification measures for institution called “soccorso istruttorio” (hereinafter, also, SI), as stated under the Article 38, par. 2-bis of the Italian Public Procurement Code.

Altough discussions and debates over SI only recently enjoy media repercussions, this institution has been already introduced by the Law no. 106/2011 in order to allow for integration of the relevant information or documentation submitted by economic operators. Such purpose has been complicated by the Decree Law no. 90/2014.

Article 38, par. 2-bis of the Italian Public Procurement Code distinguishes between essiantial and non-essential irregularities, providing as follows: in the first case, the contracting authorities may request the economic operators concerned to submit, supplement, clarify or complete the relevant information or documentation within 10 days; in the second case, no request shall be made. In addition, in the first case, the economic operator concerned, if decides to appeal to the SI, will have to pay a sanction ranging between the one per thousand and the one per hundred of  the procurement’s value and not exceeding Euro 50.000. It must be wondered whether this sanction has to be payed also where the economic operator decides to renounce to the SI and to be excluded from the tender.

The question arises from the recent confrontation between A.N.AC. ( National Anticorruption Authority) and Italian Court of Auditors. Whilst ANAC, subsuming competences of the “Authority for the Supervision of Public Contracts”, considers that any sanction is applicable where the economic operator decides to not appeal to the SI and, for this fact, agrees to be excluded from the tender, the Italian Court of Auditors considers the lack of earnings, related to this sanction, can lead to administrative and accounting liability.

The reasons for assuming such position, as expressed by the General Prosecutor of the Italian Court of Auditors, are not clear and were not even explained: in fact an entitlement would be necessary to impose sanctions and to require the related payment and this entitlement shall be different from the one that legitimizes the threath of sanctions in the SI event.

The event of a sanction owing to an irregularity or incompleteness of the due information is unconvincing: the exclusion from the tender should be sufficient for the purpose.

In order to justify the position assumed by the General Prosecutor, it should be noted that it could place responsability on economic operators: it is easy to comprehend what they choose between supplementing the relevant information, together with the payment of the sanction, and being excluded, over and above paying.

Meanwhile, it is not clear at all which orientation will be adopted by the contracting authorities: the following experience will give us cause to further discuss on this issue.

Avv. Mario Benedetti , Dott.ssa Paola Perinu