Remedial Instruction in Italian Tender Procedures: An Opportunity for Correction and Integration

Transparency and Fairness in Tender Procedures

The Role of Remedial Instruction The Remedial Instruction in Italian Tender Procedures: Definition, Function, and Usage The area of tender procedures in Italy is a sector that requires attention and precision, considering the complexity of the procedures and the numerous variables involved.

To ensure a fair and transparent process, it is essential to have tools that allow for the correction of any errors or omissions in the documentation submitted by competitors. In this context, remedial instruction plays a key role, allowing for the correction and integration of the documentation of the submitted offers.

In this article, we will explore what remedial instruction is in Italian tender procedures, how it works, and when it can be used. Remedial Instruction in Tender Code Remedial instruction is an institution founded on Article 83 of Legislative Decree 50/2016, the Public Procurement Code. This tool was introduced to provide contracting stations with the possibility of intervening to fill gaps in the documentation of offers, without altering the content of the same. In other words, remedial instruction allows for asking competitors to provide clarifications or additional documents related to their offer, without modifying its substantive contents.

But how does remedial instruction work in practice?

After evaluating the offers, the contracting station may identify inconsistencies or deficiencies in the documentation submitted by competitors. Instead of excluding the offers in question because of such errors or omissions, the contracting station has the possibility of asking the competitors to provide further clarifications or additional documents.

This request is made through an act of remedial instruction, which must be notified to all competitors who have submitted regular offers. The tender remedial instruction is an act that must be notified to the competitors within a reasonable and sufficient period to allow them to comply with the request. It is important to emphasize that requests for remedial instruction cannot concern aspects that alter or modify the essential elements of the offers. In other words, it is not allowed to request substantial changes or new offers, but only to integrate or clarify the documentation already presented. Once the requests for remedial instruction are received, competitors are obliged to respond within the terms set by the contracting station.

This is a crucial moment, as a lack of response or an inadequate response can lead to the exclusion of the offer. Therefore, competitors must pay utmost attention in compiling the requested documents and in providing complete and exhaustive clarifications.

Ensure Your Competitiveness in Public Tender Procedures: buy our Surety Insurance today! Protect your investment and win tenders with confidence: choose our Surety Insurance for Public Tenders! The use of remedial instruction is aimed at ensuring a correct and fair evaluation of offers, allowing competitors to rectify errors or omissions in the documentation submitted. Moreover, this tool contributes to avoiding unjustified exclusions that could result from minor formal errors or a lack of completeness in the documentation.

However, it is important to note that the use of remedial instruction must occur in respect of the principles of transparency, impartiality, and equal treatment among competitors. The requests for remedial instruction must be formulated clearly, precisely, and motivated, avoiding any type of discrimination or preference among competitors. 

When can remedial instruction be used? 

Its use is provided for in tender procedures for which an invitation to submit offers has been foreseen, both in open and restricted procedures.

However, the use of remedial instruction is not mandatory, but a discretionary power of the contracting station, which can evaluate case by case whether to resort to this tool. In conclusion, remedial instruction in Italian tender procedures represents an important tool to ensure the correctness and transparency of the offer evaluation processes.

This tool allows contracting stations to ask competitors to provide clarifications or additional documents, without changing the substantive content of the offers. Remedial instruction can be used when there are errors or omissions in the documentation of the offers, but always respecting the principles of transparency, impartiality, and equal treatment among competitors.

If a provisional guarantee is not submitted with the offer for a tender, this error can only be corrected if the guarantee had already been issued before submitting the offer.

If the provisional guarantee was signed by someone who did not have the right or authorization to do so, this error cannot be corrected and will lead to exclusion from the tender.

Moreover, the Italian Council of State, in a recent judgment (no. 5347/2022), has changed the way the “provisional guarantee” in tenders is viewed. Before, it was thought that this guarantee was just an administrative detail, but now it is seen as a fundamental part of the economic offer presented by companies wishing to participate in the tender. This means that if there is a problem with the guarantee, it cannot be easily resolved during the tender procedure.

Before this decision, there was a belief that minor irregularities or deficiencies in the provisional guarantee could be corrected during the tender process.

For example, if a guarantee was missing or incomplete, it was thought that it could be easily added or corrected. However, this new ruling establishes that the guarantee is essential and cannot be altered once the offer has been submitted.

This decision changes the way companies must prepare their offers for tenders, placing greater emphasis on the accuracy and completeness of the provisional guarantee.

The ruling seeks to strike a balance between respecting the rules and being fair to all companies participating in the tender. This change could make the tender process clearer and fairer for everyone.

In-depth Analysis on the Update of the Tender Notice and the Restrictions of Remedial Instruction according to the New Code: Council of State, Section V, August 21, 2023, No. 7870 The “remedial instruction” in the new Public Contracts Code in Italy, specifically according to Article 101 of Legislative Decree No. 36/2023.

Remedial instruction is a process that helps correct formal errors or provide missing documentation in offers for public tenders, without altering the essential content of the offer. The Council of State, in judgment No. 7870 of August 21, 2023, clarified how this process should be applied.

It is explained that there are four types of remedial instruction:

1. Integrative or Completive: Used to retrieve missing administrative documents, but not the documentation of the offer itself.
2. Remedial: Allows for correcting omissions or errors in administrative documents.
3. Procedural: The contracting station may ask for clarifications on the technical or economic offer to better understand the intention of the participating company.
4. Corrective: Allows competitors to correct material errors in offers up to the day of the opening of the offers, respecting anonymity and without modifying the content of the offer.

The rule states that certain errors can be corrected within a specific time frame, ranging from five to ten days. Errors such as the failure to present the provisional guarantee or the omission of attaching the subcontracting agreement can be corrected if provable with documents dated prior to the deadline for submission of offers.

Remedial instruction cannot be used to change essential elements of the offer, both technical and economic, as this would conflict with the principle of equality among competitors. Instead, it is possible to correct deficiencies in administrative documents that do not directly affect the terms of the offer.

This balance seeks to ensure fairness in tender procedures without excessively penalizing formal errors.