Tag Archives: Public tender

Corporate Liability Under Legislative Decree No. 231/2001: Latest Developments

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Recently, the regulatory framework of administrative liability of entities for criminal offences has been partially amended, by (i) recognizing its central role within the framework of public tenders’ regulations, and (ii) expanding the catalogue of predicate offences (reati presupposto or 231 crimes).

  • 231 Corporate Liability as Ground for Exclusion from Public Tenders

Legislative Decree no. 36/2023, i.e., the new Italian Public Tenders Code (“PTC”), distinguishes between causes of automatic exclusion (Section 94) and causes of non-automatic exclusion from public tenders (Section 95).

In case of:

  • a criminal conviction or disqualification measure for the criminal offences listed under Section 94, paragraphs 1 and 2, of the PTC issued against an economic operator under Legislative Decree No. 231/2001 (Section 94, paragraphs 3, lett. a) and 5), or
  • a disqualification sanction referred to in Section 9, paragraph 2, lett. c) of Legislative Decree no. 231/2001 (or of any other sanction entailing the prohibition to enter into agreements with public entities)

the sanctioned entity will be automatically excluded from the public tender.

Moreover, if a 231 crime is ascertained, or even only contested, then a “serious professional offence” is triggered, which may lead to a non-automatic cause of exclusion from the public tender (Section 98 of the PTC).

  • New 231 Crimes

Following the PTC, Law no. 137/2023 increases the number of 231 crimes by providing for the inclusion of the following criminal offences:

  • Obstruction of tender procedures (in Italian, “Turbata libertà degli incanti”, Section 353 of the Italian criminal code), i.e., hindering or disrupting a public tender or turning away bidders by violence, threats, gifts, promises, collusion or other fraudulent means;
  • Obstruction of the choice of contractor procedure (in Italian, “Turbata libertà del procedimento di scelta del contraente”, Section 353-bis of the Italian criminal code), i.e., disruption of the administrative procedure by way of violence or threats, or by gifts, promises, collusion or other fraudulent means, in order to influence the manner in which the public administration chooses a contractor; and
  • Fraudulent transfer of values (in Italian, “Trasferimento fraudolento di valori”, Section 512-bis of the Italian Criminal code), i.e., fictitious attribution of the ownership or availability of money, goods or other utilities for the purpose of avoid the application of the provisions of the regulation on asset prevention measures or smuggling, or of facilitating the commission of one of the offences referred to in Sections 648, 648-bis and 648-ter.

The novelties described above shows the Italian legislator’s increasing attention to the conduct of entities participating in public tenders, and will result in the need to review and update the 231 model already adopted by entities, in order to (i) provide for procedures to ensure correctness of the company’s conduct with specific regard to participation in public tenders, and (ii) take into account the three new 231 crimes.

New Grounds for Exclusion of Contractors from Public Tender Procedures

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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.