The Pre-Litigation Opinion No. 14 of January 10, 2024, by the National Anti-Corruption Authority: A Case of Tender in Rome

Context and Importance of the Opinion

On January 10, 2024, the National Anti-Corruption Authority (ANAC) published Pre-Litigation Opinion No. 14, a document of significant relevance in the context of public procurement in Italy. This opinion focuses on a specific case related to a tender for extraordinary maintenance works in some streets of Rome. At the center of the issue is the dispute raised by an economic operator regarding the selection criteria imposed by the contracting station. In addition to the necessary SOA certification (Società Organismi di Attestazione), the contracting station required additional requirements such as specific turnover, works performed in a certain period, and a minimum number of employees.

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The Debate on Additional Requirements

The central issue raised in this context is whether such additional requirements were legitimate or not. The economic operator contested these additional criteria, arguing that SOA certification alone should be sufficient to demonstrate the necessary technical and financial capacity for the award of public works.

ANAC’s Decision

The National Anti-Corruption Authority, analyzing the situation, determined that, according to current legislation, the SOA certification is indeed sufficient to demonstrate the required qualifications. Consequently, any further request for additional requirements is considered illegitimate. This opinion is based on a detailed analysis of relevant regulations and underscores the importance of principles of proportionality, non-discrimination, and transparency in the awarding of public contracts.

Impact and Implications of the Opinion

The ANAC’s opinion is of crucial importance in the application to the broader context of public procurement in Italy. It offers significant clarification on how contracting stations should manage the requirements for participation in tenders, emphasizing the importance of a clear, fair qualification system without excessive evidentiary burdens for economic operators. This promotes a more equitable and transparent competitive environment, essential for a healthy and competitive market.

Analysis of Regulations and Applied Principles

ANAC’s decision is based on an accurate interpretation of legislative decree no. 36/2023 and other relevant regulations. The SOA certification is recognized as a reliable indicator of a company’s ability to manage public works. The principles of proportionality and non-discrimination are fundamental in this context, as they ensure that all companies have equal access to public procurement opportunities.

Practical Implications for Companies and Contracting Stations

For companies, this opinion means a reduction in bureaucracy and administrative burdens, allowing them to participate more easily in tenders. For contracting stations, it implies a revision of the selection criteria, ensuring they are in line with ANAC directives and current legislation.

The Pre-Litigation Opinion No. 14 by ANAC represents a significant step towards greater clarity and fairness in Italy’s public procurement system. Through this opinion, ANAC not only resolves a specific dispute but also provides clear guidance for future tender procedures, thus contributing to a more equitable and transparent environment for all parties involved.

What is SOA and Who Needs It?

The SOA (Società Organismi di Attestazione) is an Italian entity that issues certifications to companies intending to participate in public tendering for works. This certification is essential to demonstrate that a company has the necessary legal, technical, economic, and financial requirements to carry out public works in Italy.

Main Functions of SOA

• Qualification Certification: SOA issues qualification certifications to companies wishing to participate in public tenders. This certification is a prerequisite for participating in tenders for public works above the thresholds established by current regulations.
• Requirement Verification: SOA verifies a range of company-related requirements, including economic and financial capacity, technical and professional competence, completion of previous works, availability of equipment and qualified personnel, and compliance with safety and quality standards.
• Company Classification: Companies are classified into categories and classes based on the type and value of the works they can perform. This helps contracting stations identify suitable companies for specific tender projects.
• Compliance Guarantee: SOA certification ensures that the company complies with Italian regulations and European directives on public procurement.

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Importance of SOA

• Transparency and Competitiveness: SOA certification promotes transparency and fairness in competition for public contracts. It ensures that all participating companies have the skills and resources necessary to complete the works.
• Safety and Quality: It guarantees that only qualified and reliable companies can work on public projects, thus increasing the safety and quality of the works performed.

Administrative Simplification: For contracting stations, SOA certification simplifies the process of evaluating companies, as it provides a pre-verified guarantee of their capabilities.

• In summary, SOA plays a crucial role in the public procurement sector in Italy, contributing to a fairer, more transparent, and competitive market.

ANAC, standing for the National Anti-Corruption Authority, is an independent Italian body established to combat corruption and promote transparency and integrity in public administrations and public contracts.

Main Functions of ANAC

• Corruption Prevention and Fight: ANAC is tasked with preventing and combating corruption within public administrations. It develops and periodically updates the National Anti-Corruption Plan, providing guidelines for public administrations.
• Supervision of Public Tenders: One of ANAC’s main roles is supervising public tenders. The Authority monitors the correctness and transparency of tendering and award procedures, ensuring they are conducted fairly and in accordance with the law.
• Development of Guidelines and Regulations: ANAC develops guidelines, recommendations, and directives to help public administrations correctly interpret and apply laws on public contracts, transparency, and corruption prevention.
• Control and Verification: ANAC conducts control and verification activities on the implementation of anti-corruption policies in public administrations. It also carries out audits and inspections to ensure compliance with current regulations.

Whistleblowing Management: ANAC manages reports of misconduct (whistleblowing) by public employees, ensuring their protection and the confidentiality of their reports.

• Importance of ANAC
• Promoting Integrity and Transparency: ANAC plays a key role in promoting a culture of integrity and transparency within public administrations and in the management of public funds.
• Ensuring Fairness in Public Contracts: Its supervisory activity on public contracts ensures that tender procedures are conducted fairly, preventing corruption and guaranteeing fair competition among companies.
• Strengthening Public Sector Trust: Through its prevention and control activities, ANAC helps strengthen citizens’ trust in public institutions.

Support for Public Administrations: It provides support and advice to administrations for the implementation of anti-corruption regulations and transparent management of public resources.

• In conclusion, ANAC plays a crucial role in the Italian administrative system, contributing to the fight against corruption and the improvement of public administration management, significantly impacting the quality of democratic life and the efficiency of public administrations.

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