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Public contracts – Reporting of irregularities regarding the tender procedure

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

Last updated on 20 February 2024 by the Italian Anticorruption Authority (ANAC)

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 may send a notification (complaint) to the ANAC stating the reasons. This can be filed through associations and organisations representing collective or diffuse interests. An online form (in Italian) on the Authority’s website can be used to send the notification, together with any supporting documentation.

Unless the notification procedure has been closed, 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 will acquire 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 procedure may terminate with closure, in the cases laid down in the Supervisory Regulation (in Italian), with a Council decision or with an act of conclusion signed by the Chair, or by means of a managerial act in the case of a simplified procedure, whereby the Authority:

a) finds unlawful or irregular actions in the tendering procedure or the performance of the contract, making recommendations addressed to the contracting authorities or granting entities concerned, with the intention of removing the illegalities or irregularities found, or taking measures to prevent the recurrence of such illegalities and irregularities in the future;

b) records that the contracting authority or the granting entity has adopted good administrative practices worthy of reporting in the case examined;

c) takes note of the willingness expressed by the contracting authority or the awarding authority to remove the illegalities and irregularities indicated in the notice opening the procedure or to adopt acts to prevent the future recurrence of these illegalities and irregularities.

Penalties

The Authority may impose the following administrative fines:

  • EUR 500 to 5 000 for established infringements of the proper execution of public contracts;

  • EUR 500 to EUR 5 000 imposed on those who refuse or omit to provide the information or to submit the requested documents without a justified reason;

  • EUR 500 to EUR 10 000 imposed on those who provide information or submit documents that are untruthful.

Relevant legislation (in Italian)

Lodging an appeal

All economic operators – who consider that their legitimate interests have been adversely affected at the stage when a contractor is chosen by the public authority – 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), established in each regional capital and, in the second instance, before the Council of State, present in Rome and Sicily.

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. An appeal, following a special or accelerated procedure, may be filed against measures 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 when the contested act is published or the applicant becomes aware of it. 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 18 of the Public Procurement Code - in Italian).

This time limit, which is said to be deferred, does not apply in the following cases:

a) procedure in which only one tender has been submitted or admitted and no challenges to the notice or letter of invitation have been lodged by the time limit, or the challenges have already been rejected by a final decision;

b) procurement based on a framework agreement;

c) specific procurement based on a dynamic purchasing system;

d) contracts below the European thresholds.

Furthermore, 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;

  • subcontracting under a contract concluded with another operator;

  • compensation for damages suffered by the economic operator as a result of the conduct of the contracting authority.

Penalties

When an Administrative Judge decides it is in the overriding public interest not to terminate a contract affected by serious infringements, they may impose:

  • a fine on the contracting authority of between 0.5% and 5% of the contract value, understood 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 (in Italian)

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.

Furthermore, if ANAC considers that a contracting authority has adopted a measure affected by serious infringements of the Code, even if it is not a contract with a significant impact, it may issue a reasoned opinion, giving the contracting authority a time limit by which it must comply with the instructions provided. In the event of non-compliance, ANAC may file an appeal with the Regional Administrative Court.

Which acts can ANAC appeal against

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

  • calls for tender,

  • notices,

  • systems for grading economic operators established by contracting authorities in special sectors,

  • planning acts,

  • special tender specifications,

  • standard tenders adopted by contracting authorities,

  • guidelines and instructions laying down procedures for participation in tender procedures and contractual conditions,

b) measures relating to procedures governed by thePublic Procurement Code, namely:

  • decisions to enter into a contract,

  • admissions and exclusions of an economic operator to and from the tender,

  • awards,

  • design validations and approvals,

  • procedure manager appointments,

  • award committee appointments,

  • acts relating to tacit renewal,

  • measures implementing the price review and price adjustment clause,

  • authorisations from the procedure manager and/or approvals of variants or amendments,

  • outsourcing of additional works, services or supplies.

What ANAC can do

ANAC can activate two procedures:

a) Direct action, for contracts with significant impact, namly

  • 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 10 million or more;

  • contracts of EUR 5 million or more forming part of aid programmes carried out through investments from Community funds.

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 or to unjustified and repeated extensions of 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;

  • failure to conduct the compulsory public debate;

  • contract award procedure carried out by an inadequately qualified entity or carried out in circumvention of the qualification requirements of the Code;

  • infringement of the ban on artificial splitting, in order to avoid the application of the rules of the Code relating to the award of contracts exceeding the thresholds of Community relevance;

  • award of a contract despite a serious breach of obligations stemming from European treaties;

  • repeated infringements of the Code committed at the contract award stage.

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 reasoned opinion may be issued within a maximum of 120 days from the adoption or publication of the act containing the infringement.

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 (in Italian)

Pre-litigation opinion

A pre-litigation opinion is an alternative dispute resolution tool for disputes that may arise during tendering procedures for the award of a public contract, excluding disputes concerning access to documents. Opinions may also cover disputes arising during the execution of the contract, only in cases where there is provision for the exercise of an authoritative power by the contracting authority or the granting entity, in relation to:

  • ban on tacit renewal of contracts;
  • price review clause and associated implementing measure;
  • contractual changes made without a new award procedure without any legitimising prerequisites being met;
  • refusal to authorise subcontracting.

Who can request it?

The opinion may be requested, individually or jointly, by the contracting authority/granting entity or by one or more of the parties with an interest in that procurement procedure (e.g. because they cannot participate, have been excluded or have been deprived of the award).

Persons with collective interests grouped into associations or committees may also submit applications, if the matter falls within the scope of the body and if the interest they wish to protect is common to all members.

Natural persons who legally represent the applicants are entitled to submit an application for pre-litigation proceedings.

How to request a pre-litigation opinion from ANAC

If the procurement procedure was launched under the new Public Procurement Code (Legislative Decree No 36/2023) (in Italian), the following forms are available (in Italian):

If the procurement procedure was launched under the old Public Procurement Code (Legislative Decree No 50/2016) (in Italian), the following forms are available (in Italian):

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

Cases when an opinion cannot be requested

Cases where a request for an opinion cannot proceed and is inadmissible are set out in detail in Article 7 of the Regulation on pre-litigation opinions (in Italian).

For example, an opinion cannot be requested where the issue concerns the enforcement stage and is not among the exceptional cases allowed by the Regulation, where the application is made to challenge a decision that has become final (due to the expiry of time limits for bringing an appeal), when an appeal to the Regional Administrative Court is pending   that has been lodged by one of the parties or the Authority on the same issue, when the party requesting it would not derive any advantage (lack of interest).

How the procedure takes place

The Authority delivers its opinion within 30 days of receiving the request, after hearing the arguments, giving the parties a time limit of no more than five days to submit pleadings and documents.

The opinion is sent to the parties via certified email. Within 15 days, the contracting authority or the granting authority notifies the Authority of its decision whether or not to comply with the content of the opinion and, if not, must explain the reasons for its disagreement. The Authority may, within the following 30 days, lodge an appeal with the Regional Administrative Court against the contracting authority’s or authorising entity’s decision or inaction.

Relevant legislation (in Italian)

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