More flexible tenders without fair compensation? ANAC responds


Emma Potter

The request of the moment

The applicant asks the Authority to rule on the legitimacy of thefailure to exclude from the race of all the other competing companies for having formulated a discount which, also reducing professional compensationit would place itself in violation of fair compensation legislation referred to in Law no. 49/2023.

The applicant also claims to be the only one to have offered a discount percentage that it did not affect the professional compensation but only the expensesand therefore raises the question of compatibility of offers of other competitors with fair compensation legislation, suggesting that such offers should be excluded for not respecting the dictates of the aforementioned law.

The position of the successful company

The competing company, awarded Lot no. 3, contests the reconstruction presented by the applicant company, highlighting various aspects.

There lex specialis of the tender, binding both for the economic operators and for the contracting authority, he did not specify that the reduction should be formulated exclusively on expenses, leaving the consideration for the professional fee unchanged. Furthermore, it did not require competitors to limit the size of the discount to a value that did not exceed the rate established for expenses.

The competing company underlines that the contract in question is financed with funds from the National Recovery and Resilience Plan (PNRR) and therefore the legislation referred to in Legislative Decree 50/2016 applies, in particular thearticle 24 paragraph 8. This article does not oblige the contracting authority to set the tender amount for engineering and architectural services on the basis of the Parameters Decreewhich remains a mere “criterion” from which the Administration can deviate.

This aspect, according to the competing company, legitimizes the awarding of the contract and the way in which the proposed discount was formulated.

The ANAC resolution

The ANAC, after considering various documents and briefs presented both by the applicant and by other competitors and by the contracting authority, concludes that the question raised it does not concern exclusionary clauses and that the request presented by the applicant is neither late nor without foundation. However, the current regulatory and interpretative uncertainty, together with the principles of legal certainty and legitimate expectations, prevent the application of the heterointegration of the tender notice For exclude offers based based on a specific interpretation of the Fair Compensation Act.

The Council recognizes that, given the absence of clear regulatory and jurisprudential indications on the interaction between the legislation on fair compensation and the tender procedures for the awarding of engineering and architectural services, the contracting authority legitimately exercised its discretion in defining the terms of the tender, consistently with the principles that regulate public evidence.

Even assuming that the applicant's interpretation was correct, regarding the possibility of formulating reductions that only affect expenses, the Council highlights that the company that presented the application in any case he would not have formulated the best qualitative offer. This is demonstrated by the scores assigned by the tender commission to the technical offers, which placed the applicant in a non-winning position based on the qualitative evaluation alone, regardless of economic considerations.

Inarcassa Foundation, De Maio: exceptional case

He intervened on the issue Andrea De Maiopresident of Inarcassa Foundation – Foundation of freelance architects and engineerswho stated:

“We wish to reassure freelance architects and engineers, as well as the ORs and clarify the nature of the opinion published by ANAC which concerns the principle of hetero-integration of the lex specialis. This principle is used in exceptional cases to fill a gap in the tender notice by resorting to another rule or institution. This clarification is necessary following a widespread interpretation, following resolution 28 February 2024, n. 101 of the National Anti-Corruption Authority not adhering to the regulatory provisions, which went so far as to hypothesize the possibility of tenders without fair compensation”.

The president then added: “We would like to remind you that the ANAC standard tender will be binding for the contracting authorities, which will have to comply with it. We firmly believe that the resolution of 28 February 2024, n. 101 will not influence the behavior of the Contracting Authorities, which we see as increasingly correct and attentive to fair compensation, also thanks to the constant contribution of ANAC. We invite those who still have doubts to carefully reread the resolution in question which closes the opinion with a test of resistance. In other words, even if fair compensation had been applied, the appellant would still not have been the winner of the procedure”.

For De Maio: “From a strictly legal point of view, the fact that a resistance test was necessary, confirms (and does not weaken) the value of the principle of fair compensationa measure absolutely consistent with the current regulatory framework and necessary to curb the loss of competitiveness and income of entire professional categories which impacts the quality of the services provided and the safety of citizens”.