New Ministerial Directives and Procurement Code: Increased Competition and Transparency

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Interpretation of the New Procurement Code and the Circular from the Ministry of Infrastructure

The Ministry of Infrastructure and Transport, in collaboration with the Presidency of the Council of Ministers, has recently published an essential interpretative circular on article 50 of the new Procurement Code. 

This circular provides clarifications on the procedures for awarding works, services, and supplies, emphasizing the importance of compliance with the principles and rules of the European Union, particularly Directive 2014/24/EU. 

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Article 50 of the new Procurement Code of 2023 establishes the procedures for awarding contracts for works, services, and supplies below the thresholds defined by article 14. 

The main provisions of this article include:

Direct Award: For works costing less than 150,000 euros, contracting authorities can proceed with direct award, even without consulting multiple economic operators. It is necessary to ensure that the chosen operators have documented past experiences suitable for the execution of contractual services, who can also be identified among those registered in lists or registers established by the contracting authority. 

Direct Award of Services and Supplies: For services and supplies, including engineering and architecture and design activities, worth less than 140,000 euros, a similar mechanism to the direct award of works applies. 

Negotiated Procedure Without Notice: This procedure applies to works costing equal to or more than 150,000 euros and less than 1 million euros, involving consultation with at least five economic operators. 

For works costing equal to or more than 1 million euros and up to the thresholds of article 14, consultation with at least ten economic operators is required. A similar procedure also applies to the awarding of services and supplies worth equal to or more than 140,000 euros. 

Management of Lists and Market Surveys: The lists and market surveys are managed according to the methods specified in Annex II.1 of the code. The selection of economic operators to invite to negotiated procedures cannot occur through drawing lots or other random methods, unless there are specific and specifically motivated situations. 

Publication of Names: Contracting authorities must publish the names of the operators consulted in the above procedures on their institutional website. 

Award Criteria: For the awards mentioned, contracting authorities proceed with the awarding of contracts based on the criterion of the most economically advantageous offer or the lowest price, except for exceptions specified by article 108, paragraph 2

These provisions aim to ensure transparency and competition in public procurement, establishing clear criteria for the selection of economic operators and for the awarding of contracts.

Significant Changes and Innovations in the Procurement Code

The circular introduces substantial changes in the below-threshold procedures, such as direct awards and negotiated procedures without notice. These innovations emphasize the importance of considering not only the principle of result but also other key principles of the Code, first and foremost transparency. 

The need for public selective procedures and the publication of notices, in line with EU competition principles, is also reiterated.

Direct Awards: Before the changes, direct awards were simplified procedures that allowed public entities to assign contracts without an open tender process. 

The circular introduces new guidelines for these procedures, aiming to make them more transparent and competitive. This involves greater examination and evaluation of offers, even for contracts below the threshold. 

The goal is to ensure that even direct awards, despite their simplification, follow principles of economy, effectiveness, and non-discrimination, in order to achieve the best possible result with public spending. 

Negotiated Procedure Without Notice: Traditionally, this procedure has been used in specific situations, where it was justified not to proceed with a public notice. 

However, the circular imposes new conditions and limitations on the use of this procedure, emphasizing the need for greater transparency and justification in its use. The changes aim to ensure that this procedure is adopted only when strictly necessary and in full compliance with the principles of efficiency and transparency. 

A higher level of detail and clarity in the documentation and justification of these decisions is also required, to ensure that each choice is made in the public interest and not at the expense of the competitiveness and integrity of the procurement process.

These changes represent a significant attempt to strengthen transparency and integrity in public procurement procedures, especially in those situations where the legislation provided greater margins of discretion. 

The intention is to align national practices with European standards of competition and transparency, thus ensuring greater fairness and legality in the awarding of public contracts.

Comments by Giuseppe Busìa, President of Anac Giuseppe Busìa, President of Anac, commented on the circular as a step back for the government, but also a significant progress. 

He highlighted the need for greater transparency in direct awards and emphasized the importance of avoiding practices that could harm the quality and integrity of services and supplies. Busìa also highlighted the importance of digitization and transparency in the tender process, which not only increases efficiency but also ensures the selection of better and more qualified companies.

Towards a Future of Greater Innovation and Quality In conclusion, the new directives of the Procurement Code and the interpretative circular of the Ministry mark an important step towards greater transparency and competition. These changes aim to encourage companies to invest in innovation and quality, rather than in public relations, to create development and wealth in the sector.

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