With Resolution no. 312 of April 9, 2020, the National Anti-Corruption Authority (ANAC) provided instructions for the management of public tendering proceedings during the current period, in order to “ensure, during the health emergency, the adoption of homogeneous and uniform behaviours by the tendering authorities in carrying out tendering procedures and in the related performance phase”.
First of all, we have to wonder about the legal value of these suggestions given in the context of the Authority’s general regulatory power in the absence of a specific legal delegation to intervene on the matter. Could a tendering authority differ from these indications on a case-by-case, reasonable and reasoned discretionary assessment, or could such an action be considered unlawful for breach of “law” or excess of power?
The Authority’s indications cover everything: ongoing agreements, procedures already published and those to be published.
− With regard to the ongoing agreements, ANAC confirms the impossibility of applying penalties for delays due to the health emergency, pursuant to Article 91 of Decree Law No 18/2020.
− As far as new tenders are concerned, ANAC suggests that tendering authorities should assess the need and advisability of postponing the launch of already planned tender proceedings until the emergency phase will be ended. Otherwise, if they decide to carry them out, it requires to take the necessary precautions to encourage maximum participation and ensure par conditio between competitors.
− As far as ongoing procedures are concerned, they should apply the period of suspension, unless specific and different Public Administration’s assessments are made. In general, ANAC advises tendering authorities to act with maximum publicity and transparency in making the necessary determinations to deal with the health emergency. Furthermore, it requires clear information on the decisions made in the tender documentation.
At the same time as the publication of Resolution no. 312, ANAC issued the report no. 4 requiring to the Government to clarify – at a regulatory level – the scope of application of Article 103 of the Italian Health Care Decree. ANAC expresses the fear that if the provision in question was interpreted in an all-encompassing way, as already suggested by MIT in its circular of March 23, this would lead to the “general suspension of the tendering procedures…”, thus paralyzing supplies to public administrations, including those functional to the health emergency management, with obvious damage for the entire community.