Italian Law Decree no. 135 of December 14, 2018, titled “Urgent provisions on support and simplification for businesses and public administration” (so called “Decreto Semplificazioni”), which this blog already discussed here, has also an impact on the Public Contracts Code (Legislative Decree No. 50/2016).
Inter alia, section 80 of the Public Contracts Code on “Grounds for exclusion” has been amended and three new type of circumstances triggering exclusion have been established:
- exclusion from participation in the tender procedure when “the contracting authority demonstrates by appropriate means that the economic operator has been guilty of serious professional offenses, such as to make his integrity or reliability questionable “; (letter c)
- exclusion from the tender when “the economic operator has attempted to unduly influence the decision-making process of the contracting authority or obtain confidential information for the purpose of its own benefit or provided, even by negligence, false or misleading information likely to influence the decisions on exclusion, selection or award, or omitted the information required for the proper conduct of the selection procedure“; (letter c-bis)
- exclusion also in the further case where “the economic operator has demonstrated significant or persistent deficiencies in the execution of a previous public contract that have caused the termination of the contract due to non-compliance or a judgment ordering damages or other comparable sanctions ” (letter c-ter).
With specific reference to this latter c-ter), we note that it has modified the previous provision according to which among the serious professional offenses there are “significant deficiencies in the execution of a previous public contract that have caused the termination of the contract, not challenged in court, or confirmed as a result of a judgment (..)“.
Therefore, according to the new art. 80, par. 5, let. c-ter) of the Public Contract Code, a candidate may be excluded from the public tender in the presence of a previous contractual termination with a public authority, even if challenged in court and still pending before the judge. The point has also been recently confirmed by the sentence of the T.A.R. Marche-Ancona, January 15, 2019, n. 32.