Prepared by Claudio Costantino and Gabriella Galioto
The day after the Newsalert “Cura Italia Decree and public procurements: obligation or power to suspend the tender?”, the circular of 24 March 2020 (“Circular”) – sent by the Ministry of Infrastructures and Transports (“Ministry”), inter alia, to Ferrovie dello Stato S.p.A. and Anas S.p.A., in order to clarify the area of application of article 103, paragraph 1, Law Decree no. 18 of 17 March 2020 (“Cura Italia” Decree) – was published.
The doubts related to the application of the above-mentioned rule and to the possible legislative suspension of the different terms that mark public evidence procedures, were confirmed in the clarifying intervention of the Ministry, which has specified that “the suspension ordered (…) for the period between the 23rd of February 2020 and the 15th of April 2020 applies, with the exception of the cases excluded by the same article 103, to all administrative procedures and, therefore, also to procurement or concession procedures governed by legislative decree no. 50 of 30 April 2016”.
The Ministry has confirmed – as anticipated in the previous Newsalert – that, despite the absence of an express mention in the text of article 103, “Cura Italia” Decree, public tenders represent administrative procedures aimed at forming the negotiating will of the Public Administrations, in which “the contractual bond formation phase is governed by public law rules and develops in a procedural sequence that culminates in the adoption of an award provision and the subsequent stipulation of a contract”.
More specifically, the Circular has confirmed that the suspension referred to in article 103, paragraph 1, “Cura Italia” Decree, applies to all the terms established by the tender documents and, precisely, from the presentation of requests to participate and/or offers, to the carrying out of inspections, to the preliminary investigation, to the evaluation of the anomaly of the offer, as well as to all the terms eventually established by the tender commissions in relation to their activities.
Therefore, according to the Circular, the terms relating to award procedures, both for contracts and concessions – already pending on 23 February 2020 or started after that date – “must be considered suspended for a period of 52 days (corresponding to the period between the 23rd of February and the 15th of April 2020)”, after which they will start to run again.
In this regard, the Circular has specified that the suspension of the terms is provided in favour “of the subject burdened to observe it” (rectius: in favour of the economic operator participating in the tender), since the latter can carry out his activity within the originally assigned term or in any case within a shorter period than the one resulting from the suspension; once this period has ended, the contracting stations will have to quickly complete all the consequent activities, in order to guarantee “the reasonable duration and the fast conclusion of the proceedings, with priority for those to be considered urgent“.
The Circular still leaves a margin of doubt for the contracting stations about the existence of a real “obligation” or a mere “power” to suspend the tender procedures; as a matter of fact, the Circular concludes by inviting the contracting stations to “evaluate the opportunity to comply, even in the course of the suspension and limited to the activities exclusively pertaining to the contracting authority, the procedural, final and executive terms originally envisaged, within the limits in which this, like the other organizational and administrative initiatives, is compatible with the measures to contain the spread of COVID-19, adopted pursuant to Law Decree no. 6 of 23 February 2020, converted with modifications by Law no. 13 of 5 March 2020, and with the ordinary methods of carrying out the work in public administrations as identified by article 87 of the Law Decree no. 18/2020“.
Therefore, from the above, if on the one hand any doubt regarding the applicability of the provisions of article 103, “Cura Italia” Decree, must be considered overcome, on the other hand, the possible continuation of the activities by the contracting stations – albeit within the limits of agile working methods – will burden the latter to another performance towards economic operators, to whom it must be expressly communicated if the terms “procedural, final and executive” of the tender procedure are suspended or if they continue to run.
Probably the unclear conclusion of the Circular was due to the need to ask contracting authorities to evaluate the possibility of not interrupting certain public contracts; such as tenders considered either strategic for the country system or essential to face the ongoing epidemy or the negotiated procedures provided for by the “Cura Italia” Decree, in article 72, paragraph 2 (Measures for the internationalization of the country system) and in article 75 (Purchases for the development of information systems for the spread of agile work and network services for access by citizens and businesses).
In any case, as highlighted in the previous Newsalert, the ultimate uncertainty of the Circular could generate disputes initiated by economic operators who, relying on the obligation to suspend the tender terms established ope legis, could contest the legitimacy of the choice of the contracting station to continue the tender operations, with the consequent failure to comply with the minimum deadlines for the several phases that mark the sequence of the procedure.
PwC TLS Avvocati e Commercialisti
PwC TLS Avvocati e Commercialisti