Public Announcements and Tenders in Italy: How to get your bearings?

If, when I first started working with public administrations, someone had come along with an essential guide on how to get around public tenders and contracts, I would have been thrilled. With this I certainly do not want to promote a complete working tool (for that there are manuals to devote time to), but rather to outline a road map for those approaching the complex world of the public market.

The MEPA

Starting from the assumption that the purpose of a P.A. is to pursue interests of public importance, it is easy to understand how the market to which it turns must be transparent and strictly regulated, so as to allow anyone who is interested to collaborate according to the principles of equal competition and non-discrimination.  It is from this awareness that MEPA (Mercato Elettronico per le Pubbliche Amministrazioni – Electronic Market for Public Administrations) was born, the digital marketplace where the demand of the P.A. and the supply of qualified companies meet, all under the supervision of Consip, which manages exchanges within the platform on behalf of the Ministry of Economy and Finance. As with all purchases and sales, of course, the rules governing them have been differentiated by the legislator on the basis of the value of the goods being traded, which is why certain purely economic subdivisions have been provided for.

Direct contracting

Let us start with the first subdivision, the simplest, the one with the fewest obligations, which allows the parties to have some discretion to the advantage of greater bureaucratic lightness, which translates into greater efficiency: for purchases less than or equal to EUR 5,000.00, there is no obligation to purchase through the electronic system. This, translated into even more practical terms, means that no calls for tender or market surveys will be necessary to identify the ‘right’ supplier. First element to be clarified: 5,000.00 net of VAT or not? The reference value is to be calculated without VAT, which will therefore only be added to the committed amount at a later stage.

The simplified procedure for direct awards

Having said this, the RUP or the Manager who is about to make a purchase within the indicated threshold may approach the supplier he deems appropriate, observing only the rotation principle for the range between 1,000.00 and 5,000.00, while, if below the lower limit, he may also derogate from this principle by offering only a brief justification in the communication. For its part, the supplier may “win” the contract by signing a self-declaration attesting that as an economic operator it is upright and reliable (it has not been convicted of any criminal offences, is up-to-date with the payment of taxes and contributions, has not committed any infringements with regard to health and safety at work and other requirements under Article 80 of the Public Procurement Code). 

Our Manager, at this point, will only have to make sure to consult the ANAC register, to check the existence of the Durc at the time of signing, and to verify the subjective conditions or eligibility to contract with the P.A.. The checks referred to in Article 71 of Presidential Decree 445/2000, concerning the existence of the requirements declared in the self-certifications, are compulsory for the P.A. but can also be carried out on a sample basis, always in proportion to the risk and the extent of the benefit.

Once the verifications have been carried out with a positive outcome, the parties may provide for the drafting of the contract in a simplified form, also “by means of correspondence according to commercial custom consisting in an exchange of letters or by certified electronic mail or similar means” pursuant to Article 32, paragraph 14 of the CAP. The only prescribed obligation consists in the insertion, within the contract, of termination clauses in the event of non-existence of the declared requirements, to which may be added the provision of a withholding of the deposit or the application of a penalty not less than 10% of the value of the contract. 

Conclusions

In conclusion, I would like to share just one of my personal recommendations aimed at the maximum protection of the managerial positions that must sign public contracts: for each purchase below the threshold that is the subject of this article, it is recommended, however, the formation of small dossiers within which a number of estimates are inserted (ergo market surveys are carried out) to understand whether the price requested by the supplier from time to time identified is in line with the costs of the sector. 

Strongly inadvisable, on the other hand, is the splitting of blatantly one-off assignments in order to remain within the described range free of the compulsory tendering requirement. 

This constitutes the crystallisation of the essential points of the first public procurement/sales of goods and services band; by virtue of the smallness of the value this was conceived, as already pointed out, in a very linear and simplified manner. In the next article, we will already see how the steps are more closely articulated in relation to the MEPA, both for the practical management of the portal and for the various technical and regulatory requirements that one must be aware of.