In the context of the ongoing health emergency, the National Anti-Corruption Authority has issued a special vademecum to help administrations to carry out simplified and rapid tendering proceedings with the aim of ensuring a speedy timeframe for tendering proceedings and reducing the risk of irregularities and disputes. The specific purpose is to provide the tendering authorities with a summary of the regulations currently in force, not only to deal with the current state of emergency, but also in all those cases where it is necessary, in the presence of the legal requirements, to speed up or simplify the tenders.
The vademecum, published on 30 April 2020, is supported by a regulatory review containing an overview of the current accelerated and simplified provisions concerning the tendering procedures for the award of public works, service, and supply agreements.
In fact, the Contracts Code already provides for several measures allowing the use of rapid and simplified proceedings even outside emergency contexts. Therefore, the use of these rapid and simplified proceedings is perfectly legitimate if the legal requirements are met.
Specifically, also recalling the European Commission indications contained in Communication 2020/C 108 I/01 (see our article), the Authority has specified the possibility of using:
- the assignment without prior publication of the notice (Art. 63 of Legislative Decree no. 50/2016). This procedure is permitted under the condition that:
- the tendering authority has declared in a reasoned statement prior to the tendering proceedings launch to consider that the procedure without prior publication of the notice or call for competition is permitted under the Code;
- the contracting authority has published, respectively for Community relevance agreements and for sub-threshold agreements, in the OJEC or in the Italian Official Gazette, a voluntary notice for preventive transparency pursuant to Art. 73, paragraph 4 and Art. 98, of Legislative Decree no. 50/2016, in which it states its intention to conclude the agreement;
- the contract has not been concluded before the expiry of at least a ten-day period from the day following the publication date of the notice referred to in point (b);
- thereduction of the terms of the ordinary award procedures(Art. 60, paragraph 3; Art. 61, paragraph 6, of Legislative Decree no. 50/2016). With reference to both above-threshold and below-threshold tenders, including tenders in special sectors, on duly justified grounds of urgency, the deadlines may be reduced as follows:
- for open tender proceedings, the 35-day term for submission of bids may be reduced to 15 days (10 days in the case of an electronic bid);
- for restricted tender proceedings, the 30-day term for submitting an application may be reduced to 15 days, and the 30-day time limit for submitting a bid to 10 days;
- for simplified under-threshold tender proceedings, there is the possibility of reducing the minimum terms by half;
- the exclusion of the stand still period (Art. 32, paragraph 10, of Legislative Decree no. 50/2016), in the following cases:
- if only one bid has been submitted or accepted and no timely appeal has been made against the notice or letter of invitation or these appeals have already been rejected by a final decision;
- in the case of a tender based on a framework agreement;
- in the case of specific tenders based on a dynamic purchasing system;
- for amounts below the Community threshold in the case of purchase via the electronic marketplace;
- for tenders with a value of less than 40,000 Euros, by direct award even without prior consultation of two or more operators or for works under direct administration (sub-threshold ex Art. 36, paragraph 2, letter a), of Legislative Decree no. 50/2016);
- for tenders with an amount equal to or greater than 40,000 Euros and less than 150,000 Euros for works, or below the thresholds set out in Art. 35 for supplies and services (sub-threshold ex Art. 36, paragraph 2, letter b) of Legislative Decree no. 50/2016);
- the early execution of the agreement following the award, as a matter of urgency, in the objectively unforeseeable cases listed below (Art. 32, paragraph 8, of Legislative Decree no. 50/2016):
- to avoid dangerous situations for people, animals or things;
- to avoid hygiene and public health dangers;
- to overcome dangerous situations for the historical, artistic, cultural heritage;
- in cases where failure to carry out immediately the service deduced in the tender would cause serious damage to the public interest which it is intended to serve, including the loss of Community funding;
- the negotiated proceeding without prior publication of the notice (Art. 63 of Legislative Decree no. 50/2016). If strictly necessary, this procedure is permitted when there are reasons of extreme urgency deriving from unforeseeable events by the tendering authority, including civil protection emergencies (Art. 63, paragraph 2, letter c) of Legislative Decree no. 50/2016). It is considered that the current emergency, if adequately indicated in the grounds, also in relation to the specific nature of the tender, may constitute a legitimate prerequisite for the procedure at hand. However, in such cases an adequate evidence of the causal link between the epidemiological emergency and the urgency of the tender must be provided. This procedure may also be used for tenders in special sectors and for design and related tasks;
- procedures in case of emergency or civil protection (Art. 163 of Legislative Decree no. 50/2016). If the requirements and conditions laid down in the rule are met, the RUP or the competent administration’s technician may order the immediate execution to begin. This procedure also applies to specific works in the cultural heritage sector for an amount of more than 300,000 Euros;
- the immediate effectiveness of subcontracting. In the event that subcontracting is carried out by negotiated procedure without a notice for reasons of urgency or by direct execution in extreme urgency, the tendering authority may give immediate effect to the subcontracting, by checking that the subcontractor meets the requirements on the basis of the self-certification provided by the latter;
- the exclusion or rapid solution of the anomaly verification procedures of binds (Art. 97, paragraph 3-bis, 6 and 8, of Legislative Decree no. 50/2016). In cases where the number of bids is less than 5, the anomaly threshold shall not be calculated, with the possibility for the tendering authority to assess the regularity of any bid, which appears to be abnormally low based on specific elements. In the case of sub-threshold, where the number of tenders is equal to or greater than 10 non-transborder works, services and supplies with the lowest price award criterion, abnormal tenders may be automatically excluded, as provided for in the notice;
- amendments to agreements during the period of effectiveness (Art. 106, paragraph 1, letter c) of Legislative Decree no. 50/2016). Unforeseen and unforeseeable circumstances for the tendering authority, including the occurrence of new legislative or regulatory provisions or measures of authorities or bodies responsible for the protection of important interests, may justify amendments to the agreement during the period of effectiveness, without the need for a new tendering proceeding, under the condition that the amendment does not alter the general nature of the agreement;
- termination of the agreement (Art. 108, paragraph 4, of Legislative Decree no. 50/2016). Reasons of urgency may expedite the procedure for the termination of the agreement in the event of breach of contract by the executor. In particular, the term assigned to the executor to counterclaim the contested delays due to negligence in the performance of the contractual services may be even less than 10 days;
- the omission of one or both of the first two levels of design of works established by Art. 23, paragraph 4, of Legislative Decree no. 50/2016, under the condition that the next level contains all the elements provided for the omitted level, safeguarding the quality of the design;
- the assignment of the support role to the RUP by external experts (Art. 31, paragraph 11, of Legislative Decree no. 50/2016), if there is not adequate professionalism within the tendering authority;
- the procedural reversal, i.e. the possibility to examine bids before checking the bidders suitability (Art. 1, paragraph 3, of Law no. 55/2019).
The vademecumand the regulatory review conclude by recalling some provisions on public contracts contained in Legislative Decree no. 18 of 17 March 2020 on “Measures to strengthen the National Health Service and economic support for families, workers and businesses related to the epidemiological emergency from COVID-19” and in the OCDPC c n. 630 of 3 February 2020 on “First urgent civil protection interventions in relation to the emergency related to the health risk related to the onset of diseases caused by transmissible viral agents”.
Basically, ANAC has simply summarized the rules contained in the Code. No additions, no advice, no model. More than a vademecum, tendering authorities have received a summary (to understand what a vademecumcan be, see our commentary on the Procurement Policy Notes (PPN) prepared by the UK Cabinet Office). However, this is better than nothing, especially because someone will inexplicably feel relieved to use the tools.
Our hope is that the administrations will overcome the so-called defensive administration and regain, once and for all, their discretion (see Governare per Contratto. Come creare valore attraverso i contratti pubblici, S.Valaguzza (2018), Editoriale Scientifica).