Administrative and Procurement LAW - Riassunti corso

PUBLIC TENDER PROCESS AND PROCEDURES

5. The public tender process is set up by a contracting authority in order to select the tender winner and to award the contract.

This part of the procedure is specifically governed by the new Public Procurement Code (D.Lgs 18 Aprile 2016 n.50) in accordance with Directive n. 24 of 2014.

Phase 1: PUBLIC CALL and INVITATION TO TENDER

The public tender procedure has two initial acts:

1. Deliberazione a contrarre - the contracting authority's decision to award a contract which has to be motivated in accordance with art. 3 L. n. 241/1990
2. The public call/notice for tender

The public call/notice for tender:

• It's an administrative act adopted by the contracting authority in which are expressed and described the specific needs of the tender.
• It is published in both Italian and EU "Official Journal" and then it is published on the contracting authority website and newspapers of national/regional interest.

aim: widely known by the highest possible number of undertakings. The public call cannot be sent by e-mail or by any other mean of communication addressed to a specific undertaking (principle of impartiality and equal treatment). The public call for tender must specifically list all the needs of the administration and the reasons why it is looking for a specific work, supply, or service. The call explains also which criteria will be considered in order to award the contract and their different evaluation: each of them gives a certain score. The criteria cannot be changed during the tender (not distort the regularity of competition). The sum of the scores designates the tender winner. The undertaking cannot contest the public call to the administrative judge just because the established criteria are not suitable to its own characteristics. This challenge is however possible if the criteria are clearly discriminatory. The invitation to

tender· The “invitation” is the act by which the contracting authority informs the market about its will to award a publiccontract for works, services and supplies. This information is addressed to any economic operator interested.

The invitation contains the details on («lex specialis» of the procedure):

1. Contracting authority responsible of the procedure
2. Procedure manager
3. Terms and conditions on the contract
4. Qualification requirements of the tenderer
5. Award criteria
6. Evaluation criteria of the selection and relevant scores
7. EU standard forms

The submissions of tenders

In response to a call the interested tenderers have to submit an offer that contains:

1. Identification of the economic operator
2. Reference to the specific tender procedure
3. Requested documents
4. Economic and technical offer
5. All the information requested in the above mentioned EU standard forms

Phase 2: CONTRACTOR’S SELECTION

Open procedures - Art. 27 Direttiva

2014/24/UE - ART. 60 CODE· Any interested economic operator may submit a tender in response to an invitation tender or a call for competition.· The selection is performed by awarding the highest score, on the base of the technical and economic terms of the tender.

Advantages· Offer the greatest competition as it is open to all qualified and interested bidders· Allow new or emerging suppliers to enter the specific market· Facilitate innovation

Disadvantages· Have a slow and costly process· A huge number of tenderers could participate and some of them could be unsuitable for the contract. This may cause a great waste of time, effort and money· The general objective of the EU Directive is the simplification of the administrative burden for contracting authorities and economic operators.

Member States should:- Ensure sufficient advertising and comply with the principles of transparency and non-discrimination;- Guarantee a selection

focused on the criterion of the «most economically advantageous tender» (the best price/quality ratio); - Open competition to small and medium suppliers; - Ensure compliance with obligations in the fields of environmental, social and labour law; - Develop mechanisms of electronic certificates and documentation to speed and simplify the procedure. Restricted procedures – Art. 28 Direttiva 2014/24/UE - ART. 61 CODE Restricted procedure (“licitazione privata”) is a procedure in which, differently from open procedures, the procurement takes place only amongst operators that have been selected and invited by the contracting authority. Phases - The procedure is divided in two different phases: pre-qualification and tender. - Any economic operator may submit a request to participate in response to a public call. - Only those economic operators submitting more interesting offers are expressly invited by the contracting authority and, after this invitation, may submit

1. Deliberation to contract and publication of the calls;
2. Submission of the request for invitation;
3. Pre-qualification phase;
4. Shipment of the letter of invitation to tender;
5. Submission of offers.

If the number of candidates meeting the selection criteria is below the minimum number:

1. The authority may interrupt the procedure, but the decision must be motivated.
2. The authority may continue the procedure by inviting the candidates with the required capabilities, but the number of candidates shall be sufficient to ensure competition.
3. In any event, the authority must not include economic operators that didn't request to participate or candidates that don't have the required capabilities.

EU Directive

• The new directive intends to simplify the choice of competitive procedures.
• According to the preliminary statement no. 42 "There is a great need for contracting authorities to have additional flexibility to choose a procurement procedure, which provides for negotiations. Member States should be able to provide for the use of competitive procedure with negotiation or competitive dialogue, where open or restricted procedures are not likely to"

Choice between open and restricted procedure

• The administration can choose between open and restricted procedures.
• In general, restricted procedures are preferred in complex procurements that require technical evaluations for a limited number of candidates.
• The choice between the two procedures has not to be motivated and the judge will not examine it unless it is clearly unreasonable in relation to the object of the procurement.

Exceptional procedures

• Exceptionally, the contracting authorities may use different procedures:
• Negotiated procedure
• Competitive dialogue
• Innovation partnership

The contracting authority is allowed to down select gradually the number of potential candidates. This intention has to be expressed within the contract notice so that all the economic operators would be perfectly aware of the different stages of the procedure.

The selection of the operators among the

intermediate steps has to be oriented by the same criteria which rule the award.
Negotiated procedure - Art. 29 + 32 Direttiva 2014/24/UE - ART. 62-63 CODE
Even in negotiated procedures, the par condicio among the candidates and the secrecy of the original offers have to be ensured.
Negotiated procedures are with or without a prior publication of a call for competition:

1. With prior publication of the public call (art. 29 Dir./art. 62 Code): any economic operator may submit a request to participate in response to a call for competition. Only those operators invited by the contracting authority, may submit an initial offer. At this point the contracting authority starts the negotiation with the operators in order to improve the content of their offers and the conditions of the contract. At the end of the procedure the contracting authority may select the best offer. This procedure is used:
   - When at the end of an open or restricted procedure all the tenders are irregular or unacceptable in

relationto the requirements established in the public call; - In contracts of works for research or scientific experiments. 2. Without prior publication of the public call (art. 32 Dir./art. 63 Code): The contracting authority negotiates the contract directly with one or more economic operators: no information about the tender has been published. The contracting authority autonomously select the candidates with which negotiate. This procedure apparently conflicts with the public procurement law and the principles of transparency, free competition, impartiality and publicity. For this reason, the above procedure can be used under strict conditions: - When at the end of an open or restricted procedure, no tenders have been presented or comply with the requirements established in the public call; - For extremely urgent matters related to events (earthquakes or other natural disasters) unforseeable by the contracting authority; - If the works, supplies or services can be executed only by a particular

Final considerations

• The negotiated procedures shall be used only in exceptional circumstances, established by law because of the lower protection to the principles of transparency, advertising, equal treatment, non-discrimination and competition.
• Since the contracting authority is entitled to reduce the number of the economic operators taking part into the public tender, it has the power to limit the possibility for the different companies to reach the economic goals deriving from the award.
• This mechanism represents an exception to the fundamental principles that rule the public tender process: only in particular circumstances (for instance, there is no other operator able to provide a certain service) the sacrifice of those guarantees of public interest can be accepted and justified.

ANAC survey

• The authority had monitored the activity of public administrations showing