As regards the parties to whom public contracts may be awarded, reference must be made to art. 34 of the Code, where the legislator has identified the parties that may take part in a public tender.
- Parties carrying out entrepreneurial activity
- sole proprietors
- artisans
- commercial companies, articles 2247 et seq. of the Italian Civil Code
- cooperative companies articles 2511 et seq. of the Italian Civil Code
- The Consortia
- Consortia among production and labour cooperative companies, established under Italian Law no. 422/1909 and D.Lgs. no. 1577/1947
- Consortia among artisan companies under Law no. 443/1985
- Permanent consortia constituted:
- consortium companies, art. 2615-ter Italian Civil Code
- among sole proprietors, also artisans
- commercial companies
- production and labour cooperatives
- Temporary groupings of competitors (RTI)
- constituted by companies, sole proprietors or entities endowed with legal personality
- Ordinary consortia
- constituted among the parties at points 1), 2), 3)
- also in company form, pursuant to art. 2615-ter Italian Civil Code
- EEIG
- parties having entered into the European Economic Interest Grouping contract
- Foreign operators
- Economic operators established in other Member States, constituted in accordance with the legislation in force in the respective Countries.
According to art. 38 of the Code, paragraph 2, “the candidate or competitor attests possession of the requirements through a substitute declaration… in which they indicate any convictions for which they have benefited from non-mention”.
These requirements, related to the contractor’s reliability, in addition to having to exist on the date of contract signature for the issuance of the qualification certificate, must persist at the time of participation in the specific awarding and contract stipulation procedures. The declaration is issued on plain paper, with the need for signature authentication or with the obligation to attach a photocopy of a valid identity document.
Once the presence of general-character requirements is ascertained and therefore the absence of exclusion causes verified, the code regulates the phase of ascertainment of special-order capacity requirements, since they vary according to the size and quality of the performances object of the contract.
From an EU perspective there are two systems Member States may resort to: one provides that the demonstration by competitors takes place tender by tender, depending on what is provided in the notice considered each time; the other is based on a general qualification restricted to a certain period of time, thereby relieving the contracting station from the burden of carrying out a verification in every tender. The Public Contracts Code adopts both: SOA system for works, “tender by tender” system for services and supplies.
Economic and financial capacity (for services and supplies)
Art. 41 Contracts Code sets the necessary means of evidence, which are in turn to be specified tender by tender by the contracting station; the latter also has the power to request other evidence it deems useful or necessary. The documents contemplated by the legislator as means of evidence are:
- suitable bank declarations, which must come from at least two banks or financial intermediaries
- balance sheets or balance sheet extracts of the company
- declarations concerning the global turnover of the company and the amount relating to services or supplies in the sector covered by the tender, realised in the last three financial years.
Technical and professional capacity (for services and supplies)
Art. 42 of the Contracts Code: it is up to the contracting station to specify in the tender notice or in the letter of invitation which of the indicated documents and requirements must be presented or demonstrated “according to the nature, quality or importance and use of the supplies or services”. The choice must be made respecting the principles of free competition, equal treatment, non-discrimination and proportionality enshrined in articles 2 and 42 of the Code.
Means of evidence contemplated are:
- presentation of the list of the main services or main supplies provided in the last 3 years with the indication of the amounts, dates and recipients, public or private, of the services or supplies themselves
- indication of the technicians and technical bodies, directly under the competitor and, in particular, of those in charge of quality control
- description of the technical equipment such as to allow their precise identification and traceability, of the measures adopted by the supplier or service provider to guarantee quality
- indication of the educational and professional qualifications of the service providers or of the company managers and, in particular, of the parties who are concretely responsible for the provision of services
- for service tenders, indication of the average annual number of the competitor’s employees and the number of managers employed in the last 3 years
- for service tenders, a declaration indicating the equipment, materials and technical kit that the service provider will have to perform the contract. Said equipment must not be generically available to the competitor but instrumental to the specific contract being awarded
- indication of the share that may be subcontracted.
In general, regarding the methods of attesting special-order requirements, it is provided that the balance sheet and turnover are attested by signed declaration; the awarded competitor is then required to provide documentary evidence to confirm what was declared at the tender stage, and the PA addresses this request:
- before proceeding with the opening of the envelopes related to the offer presented, to a number of bidders not less than 10% of the offers presented, chosen by public draw
- within 10 days from the conclusion of the tender operations, also to the awarded party and to the competitor next in the ranking, should they not be among those previously drawn.