Prepared by Claudio Costantino and Gabriella Galioto
The spread of Covid-19 has imposed the adoption of measures for containing the virus and protecting public health, also aimed at mitigating the disruptive effects that the epidemy is causing to the national socio-economic system.
With the latest of the emergency measures (preceded by numerous D.P.C.M. which have severely tested the hierarchy of the sources of law), the Law Decree no. 18 of 17 March 2020, published in the Official Gazette of the Italian Republic no. 70, containing “measures to strengthen the national health service and for the economic support for families, workers and businesses connected to the COVID-19 epidemiological emergency” (“Cura Italia” Decree), the Government has adopted, inter alia, numerous provisions aimed at regulating, in the period of crisis, the administrative procedures pending before the public administrations (“P.A.”).
In particular, article 103, paragraph 1, of the “Cura Italia” Decree, provided that, in order to calculate the indicatory, mandatory, preparatory, procedural, final and executive terms for the conduct of administrative procedures, both upon request by a party and ex officio, the period between the 23rd of February 2020 and the 15th of April 2020 is not taken into account, also establishing that, for the corresponding time, the P.A. decision-making terms are extended or deferred.
Certainly, the rule is applied in relation to administrative procedures understood in the strict sense, namely those referred to in Law no. 241 of 7 August 1990, (“New rules on administrative procedures and right to access administrative documents”). However, from the drafting of the aforementioned article 103, it is unclear whether the suspension involves also the different terms that mark a tender procedure – as administrative procedure (rectius, public evidence procedure) – and the related sub-proceedings: from the minimum dilatory terms required for the submission of tenders, to the preliminary investigation, to the verification of the anomaly of the offer, to the proof of possession of the requirements, to the minimum deadline to be respected before entering into the contract with the successful bidder, etc..
As a matter of fact, the mentioned rule did not expressly consider the tender procedures – aimed at forming the negotiating will of the P.A. – among the exceptions indicated in paragraphs 3 and 4 of article 103, “Cura Italia” Decree, consequently generating several doubts regarding the possible legislative suspension of the different terms that mark public evidence procedures (including, paradoxically, the negotiated procedures provided for by article 72, paragraph 2 and by article 75, “Cura Italia” Decree, which can be counted among the administrative procedures).
The emergency rush with which the rule was adopted is also reflected in the explanatory report to the “Cura Italia” Decree of 17 March 2020, which does not provide any indication on the related interpretation, but merely justifies its introduction “in order to avoid that the PA, in the period of reorganization of the work activity due to the emergency state, incurs any delays or the formation of significant silence “.
The obvious consequence of the above is administrative uncertainty, so much so that, from the analysis of over two hundred corrections notices published last week in the Official Journal of the European Union, aimed, inter alia, at the modification of the terms of receipt of the bids, numerous contracting stations have suspended or extended the tender activities, both on their own initiative – by forming their expression of will on the basis of the restrictive measures referred to in Article 103, “Cura Italia” Decree – and by acknowledging the requests made by economic operators.
On the other hand, many other contracting stations, surprise by the unclear regulatory provision, are continuing the tender activities without suspending and / or extending any deadline.
Therefore, after the “Unblocking of Construction Sites Decree ” (Decree no. 32 of 18 April 2019, converted with Law no. 55 of 14 June 2019) and the subsequent blocking construction sites (Covid-19), there is the risk of extremely paralyzing the administrative action through a rule that aims at compensating PA delays, with a rather excessive effect, taking into account that public tenders must be conducted using telematic systems, for some time now and, in particular, from 16 October 2018 (see Article 58 of Legislative Decree no. 50 of 18 April 2016, “Procurement Code”).
Consequently, in the absence of the legal provisions and of specific explanations from the competent authorities with regard to the P.A. obligation or power to suspend the terms for public competitions proceedings, contracting authorities need to balance the conduct of public tenders and, at the same time, the peremptory application of article 103, “Cura Italia” Decree.
What about the economic operators? Obviously, they navigate by sight, trying to understand what the contracting stations on duty will decide in relation to the tender in which they intend to participate, with the aggravating circumstance of preparing accompanying documentation and the relative offer in smart working mode.
At this stage, according to a practical application of the article 103, “Cura Italia” Decree, it is recommendable:
- in relation to the tenders to be announced, to provide broader terms than the minimum ones provided for in the Procurement Code;
- for tenders in progress, to resort to the suspension of the tender deadlines (which would resume from 15 April 2020), or to order an extension, establishing new deadlines for carrying out any inspections, for the transmission of requests for clarification and related feedback, as well as for the submission of requests to participate and / or to receive offers;
- in relation to the stipulation of contracts relating to awarded tenders, to proceed with the stipulation of the contract, verifying that the relative services are actually executable during the period of validity of the restrictive measures adopted so far to limit the spread of Covid-19;
- for contracts in progress, to evaluate whether to resort to partial or temporary suspension of activities, pursuant to article 107, paragraphs 1 and 4, Procurement Code, or whether to proceed, upon application by the executor, to an extension of the contract execution deadline, pursuant to article 107, paragraph 5, Procurement Code, if it is possible to reschedule the works, without suspending them.
Precisely with reference to the contracts in progress, several critical issues emerged regarding the possibility of continuing the execution of the contractual services, especially in the context of works contracts, simultaneously guaranteeing conditions of health and safety in the workplace and in work methods.
In this regard, on 19 March 2020, the Ministry of Infrastructure and Transport published the regulatory protocol for the containment of the spread of Covid-19 in construction sites, as per article 91, paragraph 1, “Cura Italia” Decree, according to which compliance with containment measures is always assessed for the purpose of excluding the liability of the debtor, pursuant to articles 1218 and 1223 of the Civil Code, also in relation to the application of any forfeitures or penalties connected with delayed or omitted compliance.
Certainly, the regulatory ambiguity that is dividing contracting stations, between supporters of the obligation and of the right to suspend the deadlines for the performance of public contracts, could give rise to disputes by those who, invoking the existence of an obligation to suspend in accordance with the provisions of article 103, “Cura Italia” Decree, considers unlawful the choice of P.A. to continue the tender procedure.
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PwC TLS Avvocati e Commercialisti
PwC TLS Avvocati e Commercialisti
PwC TLS Avvocati e Commercialisti