A few days after the publication of Resolution no. 312 of April 9, 2020 and the Government’s notice no. 4/2020 of the same day, once again ANAC has intervened on the issue of the suspension of public tenders terms, introduced by Art. 103 of Decree Law no. 18/2020 (the so-called “Cura Italia” Decree), and subsequently extended until May 15, 2020 by Art. 37 of Decree Law no. 23/2020 (the so-called “Liquidity Decree”), coming back to what it had initially clarified.
As we had the opportunity to discuss in more detail in the previous article (available on this website), the National Anti-Corruption Authority had provided indications for the management of the public tender proceedings, in order to favor the adoption of homogeneous and uniform behavior by the tendering authorities. In particular, the Authority had given the tendering authorities suggestions with reference both to the tender procedures still to be launched and the procedures already launched, and to the contracts awarded and those being executed.
Then ANAC publishes a “clarification”, with the eloquent title: “it was never asked the tendering authorities to suspend the tendering proceedings during the health emergency”.
The need for the new Authority’s intervention comes from unspecified “misinterpretations” by some tendering authorities of the indications given in Resolution 312/2020. This time, the Authority clarifies that it has never requested the suspension of the public tender proceedings during the emergency health situation caused by the spread of Covid-19. And this is true: in fact, as we pointed out in the previous note, the Authority had appealed to the discretion of the tendering authorities, which are sovereign of the proceedings as long as they had reasonable motivations. However, in the actual public procurement sector, the ANAC’s advice perceived as a command rather than an authoritative opinion – what it actually is – is sufficient to tighten and worry beyond measure.
Indeed, The Authority took correctly care to specify that it only suggested “the opportunity to postpone the beginning of the tender proceedings already planned” and to start only those “considered urgent and unavoidable”, ensuring, however, “the maximum publicity and transparency of the decisions taken”. ANAC recognizes the value of the content of Resolution no. 312/2020, i.e. “suggestions” given due to the current moment. However, these suggestions could give way to concrete assessments of the specific case that the tendering authorities could make in the exercise of their discretion giving adequate reasons.
ANAC goes further: recalling Government’s notice no. 4/2020 and the fear contained in it about the possible negative repercussions of the unconditional suspension of the public tenders terms on the public procurement sector, urging the Government and the Parliament to identify ad hoc measures in view of the so-called “phase 2”, it seems to be open to the possible carrying out of public tenders, while adopting all the measures, including procedural measures, that the current situation recommends. In fact, the Authority concludes the clarification stating with a polemical tone “that any different interpretations, relating to an alleged request for postponement of the tender proceedings by the Authority, are to be considered dismissed from all grounds”. So, in short, the power to decide what to do does not lie with the Authority, but with the Public Administration that must and can exercise public powers in the concrete case. Here we are: praise of discretion!
In conclusion, the intervention of ANAC is part of a story that appeared unclear from its beginning and in these actual circumstances, more than ever, it is important to appeal to the good action of the administration that is better aware of its needs and that will be able, hopefully, to follow the public interest even in this difficult situation.