Public Procurement: Joint communication from the independent Italian authorities

Within the context of the recently established cooperation between independent authorities, the Italian Competition Authority (“AGCM”), the Anti-Bribery Authority (“ANAC”) and the Transport Regulation Authority (“ART”) approved, by means of a resolution, procedures for the direct awarding of regional railway public transport services. The communication, despite being addressed to regions, establishes principles that may apply to all public procurement procedures.

Both private negotiations between the Public Administration and private entities and the awarding of contracts following public procurement proceedings are governed by EU Regulation 1370/2007 (the “EU Regulation”). As such, derogating from public procurement procedures and opting for private negotiations should be preserved by specific legal requirements in accordance with the principles of non-discrimination, equal treatment and transparency. In other words, the exemption from the implementation of a public procurement proceeding has to be justified.

More in detail, the communication highlights that publication of a pre-information notice, following the awarding of the contract, as well as the information related to the awarded concession, and the reasons for the final decision, do not exhaust all legal obligations to be fulfilled by the entrusting entities. In fact, further obligations should be foreseen for these subjects, in particular: (i) detailed and concise information and motivation obligations, (ii) the need to undertake a competitive comparison amongst the offers that are submitted by applicants other than the entity selected through direct awarding, and (iii) undertake an analysis based on a benchmark comparison in case of the direct awarding of public service contracts.

The main principles stemming from the communication can be summarized as follows:

1. Efficiency in the action of the competent authorities when managing resources in relation to the procedures leading to the selection process or during the execution of the contract;
2. Effectiveness concerning the actions that are undertaken and public interest reasons, in particular in relation to previously-determined transport needs;
3. Impartiality as regards the treatment of competitors and the granting of non-discrimination principles;
4. Equal treatment when it comes to assessing any economic operator;
5. Both transparent proceedings and decisions taken by the entities that award contracts;
6. Proportionality of the administrative action in relation to the purposes of the entrustment act;
7. Publicity of all communication, information, documents and procedures of the administrations that award contracts.

In addition, it is foreseen that upon request by an interested third party willing to be considered in the offering process on the same level of the undertaking which is originally selected for direct awarding, entrusting administrations shall provide the interested party with any type of information related to the configuration and the deployment of the public service in the past.

Finally, it is worth noting that motivation obligations are particularly strict when two or more interested parties submit their declaration of interest following the publication of the pre-informative notice to the market concerning the awarded entity. In these specific cases, the obligation to adequately motivate the reasons for which private negotiations should be preferred over public procurement procedures is particularly severe. In fact, the awarding entity will have to clarify why public service objectives are better safeguarded, both in terms of efficiency and effectiveness, and all the reasons underlying such choice.