Prepared by Guido Ajello, Claudio Costantino and Gabriella Galioto
Among the various enabling reforms provided for by the National Recovery and Resilience Plan (“NRRP”), the simplification of public contracts stands out and it must be implemented, inter alia, by reducing the documentary and economic burdens on the subjects participating in tender procedures, as well as the number and qualification of the contracting authorities.
As known, with regard to the documentation that economic operators must submit to participate in a public tender procedure, Article 53, Legislative Decree 31 May 2021, n. 77, converted with amendments by Law 29 July 2021, n. 108 (“Simplification Decree bis” – see newsalert of 14 June 2021), amended Article 81, Legislative Decree 18 April 2016, n. 50 (“Public Contracts Code”), delegating to the National Anticorruption Authority (“ANAC”) the task of identifying with its own provision (adopted in agreement with the Ministry of Sustainable Infrastructures and Mobility and with the Agency for Digital Italy) “the data concerning participation in tenders and the related outcome, in relation to which verification through the national database of public contracts is mandatory, the terms and technical rules for the acquisition, updating and consultation of the aforementioned data, (…) , as well as the criteria and procedures relating to access and operation of the database”.
The revised paragraph 4 of Article 81, Code of Public Contracts, also provided for the establishment of a virtual file in the national database of public contracts, which allows the economic operator to upload useful data for the purpose of participating in tenders (in particular, the data for verifying the absence of the reasons for exclusion referred to in Article 80, the certification provided for by Article 84, paragraph 1, for the executives of public works, as well as the data and documents relating to the selection criteria pursuant to article 83, Code of Public Contracts).
It follows that, according to the new formulation of the standard, the economic operator indicates the data and documents contained in the virtual file relating to the general and special requirements referred to in Articles 80, 83 and 84, Code of Public Contracts, in order to allow the related verification by the contracting authority.
Based on these assumptions, on 21 December 2021, ANAC launched the virtual file for economic operators (“VFEO”), with the aim of reducing the costs incurred by the latter in order to participate in the public tenders, implementing what has already been anticipated with the statement of 29 November 2021.
The VFEO – available in the first version starting from next March – will be usable for all tender procedures and will allow the following activities:
- use of the data and documents contained in the VFEO (in the respective terms of effectiveness) for different tenders;
- verification of the maintenance of the requirements in the execution phase on the successful tenderer and subcontractors, as required by the amended Article 81, paragraph 1, Code of Public Contracts;
- establishment of the List of economic operators already verified, in order to anticipate as much as possible the positive effects related to the possibility of reuse of the documentation acquired in the VFEO (see Article 81, paragraph 4-bis, Code of Public Contracts).
Finally, the document production costs charged to economic operators for each public procedure will be considerably reduced, allowing the reuse of documents on the possession of the requirements and automating the related verification in compliance with the so-called principle of uniqueness of sending, according to which each data is provided only once to a single information system, it cannot be requested by other systems or databases, but is available by the receiving information system (see article 3, paragraph 1, letter gggg-bis, Code of Public Contracts).
The qualification of the contracting stations and the consequent aggregation of the demand is also aimed at simplifying the tender procedures, taking into account that this reform intervention is able to favor the speed and efficiency of procurement, to generate savings and promote the sharing of best practices (including, for example, the sharing of tender notices templates, the reuse of software for the management of tenders, etc.).
On this point, the joint table set up within the control room of the new Public Procurement Code between the Presidency of the Council of Ministers and ANAC, intends to pursue the following objectives:
- reduction of contracting authorities, with particular reference to municipalities, centralizing purchases as much as possible to obtain better prices;
- strengthening and qualification of contracting authorities, mitigating organizational and professionalism deficits due to excessive fragmentation;
- application of quality, efficiency, professionalization criteria, to achieve the aggregation of the demand;
- establishment of the single registry of contracting authorities, including them in accordance with the level of qualification in possession, their proven ability to acquire goods, services and works, as well as on the basis of the stable organizational structures for the purchase, of the personnel present with specific skills and the number of tenders held in the last five years.
In this regard, the Guidelines on operating procedures for the implementation of the redevelopment system will be adopted by 31 March 2022, valid for all tender procedures announced by contracting authorities and central purchasing bodies.
All that remains is to wait, therefore, for the full operation of the new tools, as well as the interoperability of the same with respect to existing assets, to understand the subsequent obligations that will be borne by the individual contracting authorities and economic operators and to verify that they are concrete steps towards an e-procurement system that covers the tender procedure in an end-to-end manner (from planning to design, from publication to submission of offers, from management of award procedures to contractual stipulation and electronic invoicing), in line with the wishes of the European Commission with Communication no. COM / 2013/0453 of 26 June 2013, on “End-to-end electronic procurement to modernize the public administration”.
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PwC TLS Avvocati e Commercialisti
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PwC TLS Avvocati e Commercialisti
Director