Single Digital Gateway Reporting Irregularities

Single Digital Gateway Reporting Irregularities

Last update on 14 September 2022

Report a suspected irregularity in the award or performance of public contracts

If you have identified an irregularity in the award or performance of a public contract in which you are involved, you can send a notification (complaint) to ANAC stating the reasons. This can be filed through associations and organisations representing collective or diffuse interests. You will find the forms to be used for the statement on the Authority’s website and you can attach any supporting documentation:

• Form for submitting complaints about SERVICE and SUPPLY contracts (in Italian)
• Form for submitting complaints about EMPLOYMENT contracts (in Italian)

The Authority will open a case in accordance with provisions set out in the supervisory regulation (in Italian). It will also be based on an analysis of information in the National Public Contracts Database and/or stemming from facts and news reported in the press.

Stages of the procedure

• The Authority acquires any relevant information on the issues that have emerged, if necessary;
• If irregularities are identified, the Authority will send the persons in charge a communication setting out the critical issues that have emerged;
• Interested parties may send statements and counter-arguments, request a hearing or access the documents relating to the proceedings
•  The proceedings may end with a dismissal, in cases set out in the supervisory regulation (in Italian), or an report in which the Authority alternatively:
  • establishes the irregularity in the tender procedure or in the execution of the contract and calls on the contracting authority to remove the unlawful acts and adopt procedures that comply with the regulations in the future;
  • reports any good practices followed by the contracting authority;
  • takes note of the willingness expressed by the contracting authority to remove the disputed irregularities and to prevent their recurrence in the future.

Penalties

The Authority may impose the following administrative fines:

•   from EUR 250 to EUR 25 000 on those who refuse or omit to provide the information or to submit the requested documents without a justified reason
• from EUR 500 to EUR 50 000 on those who provide information or submit documents that are untruthful

Relevant legislation

• Legislative Decree No 50 of 18 April 2016, (in Italian) - Public Procurement Code
• Regulation on the exercise of supervisory activities in the field of public procurement (in Italian)
• Regulation on the exercise of the sanctioning power of the Authority under Legislative Decree No 50 of 18 April 2016 (in Italian)

Lodging an appeal

All economic operators can ask the Administrative Judge to assess the legitimacy of a decision taken by a contracting authority in the context of a tender procedure in which they have participated and, under certain conditions, even if they have not participated. In some cases, the appeal may be filed by associations of citizens or economic operators.
Administrative Justice is a special branch of the judiciary that enjoys all the rights and prerogatives of independence attributed to other judges. Appeals are filed in the first instance before the Regional Administrative Courts (TAR) (in Italian) established in each regional capital and, in the second instance, before the Council of State, present in Rome (in Italian) and Sicily (in Italian).
The appeal procedure is regulated by certain provisions of the Administrative Process Code, set out in Legislative Decree 104/2010 (in Italian).

How and when to lodge an appeal

Legal representation is required to lodge an appeal. The appeal may be filed against acts of a contracting authority that have had a negative effect on the applicant, and must be notified to the contracting authority within 30 days of the date of knowledge or legal awareness of the contested act. The appeal must also be notified to at least one of the other interested parties (e.g. one of the other competitors).
The appeal must then be filed with the competent TAR within 15 days of the last notification.
Lodging of the appeal is subject to payment of a sum of money as a contribution to the legal expenses. This amount varies based on the value of the award, and is established by Article 13 of Presidential Decree No 115 of 30 May 2002 (in Italian).
An appeal may be lodged against the decisions of the TAR with the Council of State.

Effects of lodging an appeal – Standstill

To give participants the opportunity to lodge an appeal, the public contract cannot be signed for at least 35 days after the contracting authority announces the award (Article 32 of Legislative Decree No 50 of 18 April 2016 (in Italian)).
If an appeal has been lodged against the award with a request for interim measures, the contract cannot be signed from the time the request for interim measures was notified to the contracting authority and for the following 20 days, provided that the Administrative Judge has had the opportunity to rule during this period.

What the judge can do

The Administrative Judge may order:

• temporary suspension of the contested provisions as an interim measure;
• annulment of the contested acts;
• the ineffectiveness of the contract entered into by the contracting authority with an economic operator, which may have retroactive effects or become effective from a time established by the Administrative Judge;
• compensation for damages suffered by the economic operator as a result of the conduct of the contracting authority.

Penalties

When the Administrative Judge decides not to render a contract affected by serious infringements ineffective due to the existence of overriding public interest, it may impose:

• a fine on the contracting authority of between 0.5% and 5% of the contract value, as the award price;
• a reduction in the duration of the contract, where possible, from a minimum of 10% to a maximum of 50% of the residual duration.

Relevant legislation

• Legislative Decree No 50 of 18 April 2016, (in Italian) - Public Procurement Code
• Legislative Decree No 104 of 2 July 2010 (in Italian) - Implementation of Article 44 of Law No 69 of 18 June 2009 concerning powers granted to the government for reorganising the administrative process
• Presidential Decree No 115 of 30 May 2002 (in Italian) - Consolidated text of laws and regulations on legal expenses

Challenging a contract notice or a tender document

ANAC may take legal action against calls for tender, other general acts and measures relating to contracts of significant impact, issued by any contracting authority, if it considers that they infringe the rules governing public contracts relating to works, services and supplies.

Which acts can ANAC appeal against

1) regulations and administrative acts of a general nature, namely:

• • a) calls for tender,
    b) notices,
    c) systems for grading economic operators established by contracting authorities in special sectors,
    d) planning acts,
    e) special tender specifications,
    f) standard tenders adopted by contracting authorities,
    g) guidelines and instructions laying down procedures for participation in tender procedures and contractual conditions;
  
  
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2) measures relating to procedures governed by the Public Procurement Code (in Italian), namely:

• • a) decisions to enter into a contract,
    b) admissions and exclusions of an economic operator from the tender, awards,
    c) design validations and approvals,
    d) procedure manager appointments,
    e) award committee appointments,
    f) acts relating to tacit renewal,
    g) measures implementing the price review and price adjustment clause,
    h) authorisations from the procedure manager and/or approvals of variants or amendments,
    i) outsourcing of additional works, services or supplies.

What ANAC can do

ANAC can activate two procedures:

• a) Direct action, for contracts with significant impact, i.e.
  • contracts involving a large number of operators, or relating to interventions to mark major events, ordered following natural disasters, for construction of major strategic infrastructures;
  • contracts attributable to criminal offences, anomalous situations or situations suggesting illegal conduct by the contracting authorities;
  • contracts for works, services or supplies having a particular impact on the environment, landscape, cultural heritage, territory, health, public safety or national defence;
  • contracts for works amounting to EUR 15 million or more, or services and/or supplies amounting to EUR 25 million or more.
  b) Appeal after a reasoned opinion in the event of serious breaches of the rules on public contracts, such as
  • award without prior publication of a call for tenders or notice, where such publication is required by the rules;
  • award through a procedure other than the open and restricted procedure outside permitted cases, and when this has resulted in the omission of a call for tenders or notice or the irregular use of a prior information notice;
  • act relating to the tacit renewal of public works, services and supply contracts;
  • substantial amendment to the contract that should have required a new tender procedure;
  • failed or unlawful exclusion of a competitor;
  • contract awarded despite a serious breach of obligations arising out of the negotiations;
  • failure to terminate the contract in cases provided for by the rules;
  • public notice containing clauses restricting participation and competition in general

How the procedure is conducted in the event of an appeal following a reasoned opinion

Within 60 days of receiving the news, the Authority issues a reasoned opinion stating the infringements identified and remedies to be taken to remove them.
The opinion is sent to the contracting authority, which is given a time limit of no more than 60 days to comply with the requirements set out in the opinion. If this does not take place, the Authority may decide to appeal against the act it considers to be illegal; the appeal is lodged within 30 days of receiving a reply from the contracting authority or, if no reply is received, of expiry of the time limit allocated for the contracting authority to reply.

Relevant legislation

• Legislative Decree No 50 of 18 April 2016 (in Italian) – Public Procurement Code
• Regulation on the exercise of powers referred to in Article 211(1-bis) and (1-ter) of Legislative DecreeNo 50 of 18 April 2016 (in Italian)

Pre-litigation opinions

A pre-litigation opinion is an alternative dispute resolution tool for disputes that may arise during public procurement tender procedures.

Who can request it?

An opinion may be requested by the contracting authority or one or more competitors, or by the contracting authority and the competitors by mutual agreement.
The Authority issues its opinion within 30 days of receiving the request after hearing both parties.

When the opinion is binding

The opinion is binding when

• it is requested jointly by the contracting authority and one or more interested parties, and at the time of the request they undertake to follow the instructions given in the opinion
• one or more of the interested parties express their willingness to comply with the pre-litigation request submitted individually.

A binding opinion may be challenged before the competent administrative justice bodies.
The interested parties inform the Authority of the actions they have taken to comply with the opinion within 35 days of receiving the opinion.

When the opinion is not binding

The opinion is not binding when it is requested only by the contracting authority or a participant.
In this case, the opinion may follow a simplified procedure and only a brief reasoning is given in cases where the matter concerns

• a tender for services and supplies with a value below the EU threshold
• a tender for works amounting to less than EUR 1 million for the works and an amicable settlement seems possible.

The interested parties inform the Authority how they intend to proceed within 60 days of receiving the opinion.

How to request a pre-litigation opinion from ANAC

The pre-litigation opinion requires the following forms, to be sent by certified email (PEC) to protocollo@pec.anticorruzione.it together with any documentation considered relevant and, if necessary, a supporting statement:

• to request an opinion individually, submit an Individual request (in Italian)
• if the opinion is requested by the contracting authority and by one or more participants, submit a Joint request (in Italian)
• to state willingness to comply with decisions that will be set out in the opinion requested, individually or jointly, by others, submit Agreement with the request for an opinion (in Italian)
• To notify actions undertaken following the opinion, submit Compliance with the opinion (in Italian)

When the opinion is requested by a contracting authority, the latter undertakes not to carry out actions detrimental to the settlement of the matter until the opinion is issued.

Cases when an opinion cannot be requested

The request for a pre-litigation opinion is inadmissible when it is aimed at asserting the illegality of a tender procedure that could have been challenged in court and for which the time limit for appeal has already expired.
Cases where a request for an opinion cannot proceed and is inadmissible are set out in detail in Article 7 of the Regulationon pre-litigation opinions (in Italian).

Relevant legislation

• Legislative Decree No 50 of 18 April 2016 (in Italian) – Public Procurement Code
• Regulation on pre-litigation opinions under Article 211 of Legislative Decree No 50 of 18 April 2016 (in Italian)
• Published pre-litigation opinions (in Italian)