In April 2016, by legislative decree n. 50/2016 – implementing the EU Directives 2014/23/EU, 2014/24/EU and 2014/25/EU – the Italian government amended the public procurement code (“PP Code”) introducing some relevant changes.
Amendments to the Code
In line with Directive 2014/24/EU, the PP Code provides for new grounds of exclusion from participation in a procurement procedure, which have to be verified on a case by case basis by each contracting authority. For example, a ground for exclusion may occur where the contracting authority can demonstrate by appropriate means that the economic operator is guilty of serious professional misconduct, which renders its integrity or reliability questionable (article 80, 5 paragraph, letter c of the PP Code).
On this point, the government expressly required the National Anti‐Corruption Authority (ANAC) to adopt specific guidelines clarifying, inter alia, what kind of means should be considered appropriate to demonstrate the circumstances for that exclusion.
In June 2016, ANAC published on its website for public consultation draft guidelines “for details of appropriate evidence and deficiencies in performance of a previous contract that could be considered significant for the demonstration of the circumstances for exclusion in art. 80, 5 paragraph, letter c of the Code” (“Draft Guidelines”).
The Draft Guidelines, which are not intended to be binding on contracting authorities, provide a non-exhaustive list of situations of serious professional misconduct with the aim of promoting the adoption of common practices by contracting authorities. Therefore, the situations exemplified by the guidelines will not imply the automatic exclusion of the economic operator but the obligation of each contracting authority to assess, at its own discretion, the seriousness and relevance of the conduct.
According to the Draft Guidelines, in the assessment of exclusion grounds, the contracting authority should take into consideration conduct capable of unlawfully altering the par condicio between competitors or having the aim of satisfying illegal personal interests to the detriment of the contracting authority or of others participants in the procurement procedure. One of these situations may occur, for example, when an economic operator has entered into agreements with other economic operators aimed at distorting competition (bid-rigging).
Infringement decisions as a cause of exclusion
Another possible cause of exclusion is the adoption by the Italian Antitrust Authority of infringement decisions for unfair commercial practices or for serious antitrust violations affecting public contracts and carried out in the same market of the contract to be awarded. Such decision has to be no longer appealable or confirmed by a final judgement.
However, it should be underlined that – according to the PP Code – the contracting authority may decide not to exclude economic operators that paid or had undertaken to pay compensation in respect of any damage caused by the abovementioned misconduct and have adopted so called self-cleaning measures aimed at effectively preventing further occurrences of the misbehaviour. In particular, such measures might consist of personnel and technical/organisational measures to be implemented within the time limit for the submission of the offer.
It, therefore, seems that the implementation of an antitrust compliance programme may be considered by the contracting authorities as a self-cleaning measure for the purpose of avoiding such exclusion.
We shall wait and see whether the final version of the guidelines, that should be adopted by the end of 2016, will contain clarifications in this respect.