Prepared by Guido Ajello, Arianna Mariani and Rocco Tana
On October 12, 2022, the decree of Ministry of Economy and Finance, adopted together with Ministry of Infrastructure and Sustainable Mobility and concerning “Provisions on the possible exclusion of the economic operator from participation in a procurement tender for serious tax violations that have not been definitively sanctioned” (“Decree”), has been published on the Italian Official Journal no. 239. Implementing Article 80, paragraph 4 of the Legislative Decree no. 50 of April 18, 2016 (“Italian Public Procurement Code”), the Decree defines limits and operating terms of “serious tax violations that have not been definitively sanctioned”, suitable to determine the exclusion of the economic operator from participation in public tenders.
As known, among the declarations that the economic operator shall provide on the absence of causes of exclusion preventing participation in public tenders, the fifth sentence of Article 80, paragraph 4, Italian Public Procurement Code, establishes that an operator may be excluded if the contracting authority is aware and can adequately prove that the same has committed serious violations not definitively sanctioned to obligations relating to the payment of taxes and duties or social security contributions.
Unlike serious violations definitively sanctioned, in case of a non-final assessment there is no automatic exclusion of the economic operator. This possibility is entrusted to the discretion of the contracting authority, as well as the occurrence of certain prerequisites, including the assessment of the “seriousness” of the violation, which definition in tax matters was left to the Decree.
Scope of application
Article 2, Decree, defines the concept of “violation” as the non-compliance with obligations related to the payment of taxes and duties resulting from the:
- notification of tax acts, resulting from control activities of the offices;
- notification of tax acts, resulting from settlement activities of the offices;
- notification of payment orders concerning tax claims, which are the subject of notices of non-compliance issued following an automated or formal check of the declaration.
The violation defined according to Article 2, Decree, is considered “serious” when it involves a breach of an obligation of paying taxes or duties in an amount that, excluding penalties and interests, is equal to or higher than 10% of the contract value.
Furthermore, while for procedures divided into lots, the seriousness threshold is related to the value of the lot or lots for which the operator competes, in case of subcontracting or participation in temporary groupings or consortia, the seriousness threshold shall be related to the value of the service assumed by the individual economic operator. In any case, the Decree specifies that the amount of the violation shall not be less than 35,000 euro (see Article 3, Decree).
Non-definitively sanctioned violations
As for the definition of “non-final assessment”, Article 4, Decree, specifies that the serious violation, as outlined in Article 3, is considered non-final, and therefore evaluable by the contracting authority for the purposes of exclusion from participation in public tenders, when the payment deadline has expired, and the tax act or payment order has been timely challenged. Moreover, the second paragraph of the same article specifies that exclusion from public tenders may not be ordered if a non-definitive favorable court ruling for the economic operator has been issued, until any reform of the same or until the violation is finally ascertained, or if judicial or administrative suspension measures have been adopted.
Certificate from the Italian Revenue Agency
Concerning the acquisition of data useful for evaluations by the contracting authority, pending the operability of the National Public Contracts Database, at the request of the same, the Italian Revenue Agency (Agenzia delle Entrate), will have to issue special certification with respect to the tax liabilities, “whose findings are assessable for the purpose of excluding the economic operator from participation in the tender procedure” (see Article 5, Decree).
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In conclusion, the Decree has delimited the perimeter of application of Article 80, paragraph 4, of the Italian Public Procurement Code, thus preventing the effect of excluding economic operators as a result of non-payments – not definitively ascertained – of marginal amounts compared to the value of the tender.
Thanks to the Decree, even in the absence of specific recommendations regarding its immediate applicability to current procedures, has in fact been established the extension of the limits and conditions for ordering the exclusion of economic operators in case of violations in tax matters that have not been definitively ascertained, which had been causing significant uncertainties, considering the necessary adequate motivation required to the contracting authorities in support of the measures adopted.
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