March 31, 2020


by Studio Valaguzza in Deepening

Law Decree no. 18 of March, 17 2020 – the so-called “Cura Italia Decree” – ruled all the areas affected by the health emergency and, pursuant to art. 103, it provided for the general suspension of the ordinary, peremptory, propaedeutic, endo-procedural, final and executive terms relating to the administrative proceedings pending on February 23, 2020 or commenced after such date, for the period between February 23, 2020 and April 15, 2020.
This is a general provision which immediately raised among economic actors and legal experts the question of whether the public tender procedures fall within the suspension provided for by the Article.
The ratio that results from the illustrative report to the Decree (“to avoid that the public administration, during the period of reorganization of its working activities due to the state of emergency, incurs in possible delays or in the significant silence”) and the specific nature of public tender procedures, with respect to the administrative procedures governed by Law 241/1990, would lead to the exclusion of the applicability of the terms suspension established by art. 103 of the “Cura Italia Decree” to public tender procedures.
In fact, the illustrative report to the Decree seems to suggest that the suspension of the terms was provided for ordinary administrative procedures, destined to affect the individual situation of private parties that have pretentious interests (as in the case of an application for the access to documents or an application for the issue of a building permit). Moreover, the specific nature of public tender procedures does not fall within the category of proceedings started after a party’s request or ex officio and does not provide, except in very few cases, for authorizing or peremptory terms.
However, the Ministry of Infrastructure and Transport has a different view: in fact, by circular of March 23, 2020, it has clarified that the suspension of procedural terms applies “to all administrative procedures and, therefore, also to tender or public concession procedures governed by Legislative Decree no. 50 of April 30, 2016”.
This statement, although authoritative, is contained in an internal act which is not binding on public authorities other than those receiving the clarification. However, the statement has left many doubts unresolved, which could lead to uncertainty and contradictory behaviours by the tendering authorities required to apply the emergency regulation.
Therefore, an in-depth legal study is necessary in order to guide public administrations to a rational application of art. 103 of the “Cura Italia Decree”. In this way, both the total blockage of public activity and the exposure to objections from competitors disappointed by the outcome of the tender, who could complain about the impossibility to participate and the violation of art. 103, can be avoided.
Specifically, it may be convenient to differentiate the many situations that would – as a rule – fall under art. 103. For example, the terms established in favour of the competitor on February 25 or April 14 cannot be treated in the same way. Furthermore, it may be useful to distinguish cases in which it is possible to carry out the required activity in a manner that complies, at the same time, both with emergency regulations and with the competition (for example, opening to the public tender committee meetings through remote technologies). The public administration can respect the terms established for the examination of the administrative envelopes already received and the other terms for solicitation provided, at its own responsibility, in order to guarantee a quick conclusion of the procedure, if it is able to do so. This will benefit the tenderers since the tender will be quickly concluded.
These first examples can be declined in a case study available to the tendering authorities. They show that the public administration that decided to apply the circular and suspend the terms of the tender procedures will have to make evaluations justified and well detailed, at least in order to avoid legal challenges.