That the world of competitions and procurement has always been characterized by a high level of complexity, is not new. The dense mesh of the bureaucratic network is explained by the public and institutional nature of the contracting entity. The public administration must ensure the utmost transparency and integrity of the companies participating in the invitations to tender, in compliance with the legality and the citizens. It is not infrequently the case that the contracting station is forced to exclude from the race one or more participants, because they are accused of committing serious professional wrongdoing. On the legislative level, this case is governed by art. 80, paragraph 5, read. c) of Legislative Decree No. 50 of 2016.
If the entity which informs a notice of the presence of companies that are not in line with the legislation, it must demonstrate adequately that the economic operator concerned has been guilty of such serious professional offences as to question his Integrity and reliability.
What does “professional malpractice” mean? The above article of D. LGs. 50/2016 identifies, by way of example, specific cases:
– Conviction with final judgment for crimes, fraud, false communications, exploitation of child labor, Mafia infiltration;
– Non-payment, ascertained, of tax, taxes and/or social security contributions;
– Deficiencies in the execution of a previous contract which caused the early termination.
The Contracting Party must be able to demonstrate with valid means the presence of these offences. The legislation is therefore to protect the fiduciary constraint which is triggered between the contracting authority and the contracting company. In a judgment of 5 September 2017, the Council of State underlines that even if the conviction charged to the economic operator was not definitive, it could, however, prejudice its participation in the tender. The mere presence of a conviction, although not yet definitive, in fact, represents in itself an indirect proof of which the administration could very well avail and take into account, affirms the ruling. In order to avoid these unpleasant situations it is always good that the economic operator adopts a maximum transparency behavior by going to declare all the elements that could influence its assessment: it will be the contracting entity to decree the Gravity. The non-inducing such situations would make the enterprise appear unclear and collaborative, going to compromise the image. However, the adversarial is always admitted, i.e. the possibility offered to the trader to explain his position, in cases where the economic operator has proved transparent and loyal to the Contracting Party.
The presence of an undertaking which has committed an offence must be reported to the ANAC – National Anti-corruption Authority – from the contracting station, i.e. the administration. It will be the responsibility of the ANAC to communicate to the parties involved any wrongdoing by inserting them into the computer criminal: in this way the officiality of the news will be decreed that, in turn, will also affect the curriculum of the company.
Wanting to make a quick summary: The companies participating in tenders that hide skeletons in the closet is good that they immediately present it to the contracting administrations. Only in this way will they have the right to the contradictory in order to explain their position and avoid, thus, to be excluded from the race. This is true even when judgments are not definitive, as they also represent evidence of which the contracting stations can avail themselves. In turn, the Contracting Parties may report such irregularities to the ANAC, which will insert the report into the computerized box. This process is also valid for subcontractors. The rules concerning the exclusion from tendering contracts for the completion of professional illicit by construction undertakings is clear and precise: it will be enough to stick to the shadow of important opportunities.