Prepared by Guido Ajello, Claudio Costantino and Santi Virga
With the Decree of the Presidency of the Council of Ministers of 12 August 2021, no. 148 (published in the Official Journal of Italian Republic of 26 October 2021, no. 256), has been adopted the “Regulation containing the procedures for digitizing public procurement procedures pursuant to Article 44 of legislative decree of 18 April 2016, no. 50” (“Regulation”).
As known, the legislative decree of 18 April 2016, no. 50 (“Procurement Code”) contains some provisions aim at digitalizing procurement processes, among which the Article 72 on e-notification and the Article 74 in order to the e-access, in addition to the above-mentioned Article 44.
Nevertheless, after more than five years from the entry into force of the Procurement Code, as well as after a complex iter – including the opinion of the Council of State, Consultative Division, Plenary of 17 November 2020, no. 1940 – the Article 44 has been implemented with a specific regulation that identifies some general principles on the digitalization of public purchases, through the so called “re-engineering” of purchase and negotiation, identifying the general technical characteristics of the telematic systems for e-procurement.
More in detail, the Regulation is composed by 29 Articles, aim at standardizing the telematic procedures carried out in the Italian territory with the European best practices on interconnection and interoperability of public administration data, also in order to incorporate the “best practices regarding organizational and work methodologies, programming and planning methodologies, also referred to the identification of relevant data, to their collection, management and processing, IT, telematic and technological support solutions“.
In accordance with the digitization objectives set out in the National Recovery and Resilience Plan, the Regulation provides that contracting authorities integrate their telematic systems with the following functions:
- access by users exclusively through an authorization procedure with identification by SPID (or other electronic identification means) and with a specific alphanumeric code, to create a profile consistent with the role and function performed by the subject in the procedure (Article 3);
- digital domicile or electronic service addresses of qualified certified delivery pursuant to the eIDAS Regulation[1] (for cross-border economic operators) for communications and information exchanges between users and the electronic system that require a receipt (Article 4);
- chronological recording of the operations carried out, as well as the relative changes, for the automatic traceability of accesses and verification of the operations carried out (Article 6);
- IT folders for the collection of data, documents and communications by the contracting authorities, containing the imprint of the chronological records (Article 7);
- requests for access to tender documents and making them available (Article 8);
- interconnection and interoperability between public administrations and authorized payment service providers (Article 11).
With reference to the digital management of the procurement and negotiation procedures by the contracting authorities, so far conducted in a fragmented way on different platforms, based on the Regulation, the operations listed below are carried out directly on its electronic e-procurement system (“System”):
- acquisition of the tender identification code (“TIC”), in compliance with the resolutions of the National Anti-Corruption Authority (“ANAC“) (Article 12);
- drafting of the decision to tendering of the contracting authority (Article 13);
- fulfillment of the obligations of publication of notices, guaranteeing the related automated management (Article 14, paragraph 1);
- drafting of the European Single Procurement Document (“ESPD”) in electronic format (Article 14, paragraph 2);
- drafting, acquisition and sending of tender documentation or invitations (Article 14, paragraphs 3 and 4);
- acquisition of the members of the jury and related transmission to ANAC (Article 16);
- access by the jury to the tender documentation, electronic management of the plenary sessions – verifying the connection and guaranteeing its confidentiality – and drafting and acquiring the relative reports (Article 17);
- electronic management of public sessions (Article 18);
- consultation and verification of the administrative documentation required for eligibility to the tender procedure and possible activation of the preliminary investigation and/or the request for clarification on the documentation submitted (Article 19, paragraph 3);
- drafting, acquisition and notification of the admission/exclusion of economic operators, included in the IT folder (article 19, paragraph 4);
- communication of the exclusion to the national database of public contracts (“NDPC“), also for the purpose of registration in the IT record of public contracts (Article 19, paragraph 5);
- verification of participation requirements by interacting with the NDPC (Article 20);
- consultation and evaluation of the technical and economic offers submitted by the economic operators, recording the related results of the evaluation (Article 21, paragraph 3 and Article 22, paragraph 2);
- consultation and evaluation of the technical and economic offers submitted by the economic operators, recording the related results (Article 21, paragraph 3 and Article 22, paragraph 2);
- calculation of the total technical score assigned to each economic operator and recording of the related outcome, reporting any failure to exceed the threshold value (Article 21, paragraph 4);
- communication of the exclusion to the economic operator (Article 21, paragraph 5);
- in the case of the most economically advantageous tender criterion, calculation of the anomaly threshold (Article 22, paragraph 3), reporting of abnormally low offers (Article 23, paragraph 1) and request for supporting documents (Article 23, paragraph 2);
- in the case of the lowest price criterion, listing of the economic offers in order of auction reduction (Article 22, paragraph 3);
- calculation of the total score relating to the technical and economic offer, recording the outcome (Article 22, paragraph 5);
- preparation of the tender ranking (Article 24);
- acquisition of the award order, included in IT folder, and communications on the outcome of the tender procedure (Article 25);
- drafting of the contract, acquisition and insertion in the IT folder (Article 27).
From the point of view of economic operators participating in public tenders, the System allows:
- to fill in and to submit the offer via web interface (Article 15, paragraph 1);
- to fill in or to enter the ESPD, the technical offer (and its attachments) and the economic offer into the System (Article 15, paragraph 2);
- to receive notification of the submission of documentation with indication of the date and time (Article 15, paragraph 3);
- to carry out a preliminary check in order to the upload of all documents required for participation in the tender and the completion of the online forms, reporting any critical issues (Article 15, paragraph 4);
- to receive the communication of the opening sessions related to the administrative documentation (see Article 19, paragraph 1), the technical (Article 21, paragraph 1) and economic offers (Article 22, paragraph 1);
- to transmit the supporting documents if the offer is abnormally low (Article 23, paragraph 3).
The Regulation recognizes the best practices in the field of telematic and technological solutions, including: (i) the “drafting in IT mode of the documentation useful in carrying out the tender procedures”, (ii) the “exchange of interoperable data both with the accounting systems of the contracting authorities and with the relevant systems for the purpose of simplifying procedures for economic operators” and (iii) the “use of tools for communication, coordination and collaboration also for the management of deadlines in compliance with regulatory obligations and fulfilments”.
The next step will be the guidelines of the Agency for Digital Italy (AgID) – including the description of flows, data schemes and European standards of interoperability between telematic systems and between the same systems and supervisory bodies – that contracting authorities will have to implement within six months from the date of adoption.
Therefore, the Regulation is another important element added to the long-awaited procurement reform, under the program of digitalization of the contracting authorities, pushed even more by the provisions of the National Recovery and Resilience Plan, such as reported in the previous newsletters of May 3, 2021 and July 6, 2021.
[1] Regulation (EU) No 910/2014 of the European Parliament and of the Council of 23 July 2014 on electronic identification and trust services for electronic transactions in the internal market and repealing Directive.
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