With direct assignment, freedom of choice for the contracting authority

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Emma Potter

Discretion in direct assignment

When a public administration opts for direct assignment, it benefits from wide discretion in the choice of the economic operator. THE’art. 50, paragraph 1, letter b) of Legislative Decree 36/2023in fact allows direct assignment for services and supplies under the threshold of 140 thousand eurosAlso without consulting multiple economic operators.

However, contracting authorities often choose to require quotes from multiple companieswhile remaining within the scope of direct assignment. This mechanism, although not mandatory, responds to the need for transparency and comparison.

The ANAC, with the Opinion, confirmed that the acquisition of a plurality of estimates it does not transform the direct award procedure into a formal tender. This means that the administration retains full decision-making power in choosing the economic operator, even if it has requested multiple quotes.

Operator selection criteria and complaints

The case in question concerned the procedure initiated by the Municipality of Dipignano for the direct assignment of postal, collection and enveloping services relating to local taxes, for a total amount of 140 thousand euros. The contracting authority decided to compare the estimates via the MEPA platform, but a company contested the outcome of the procedure, claiming irregularities in the assignment in favor of another company.

According to ANAC, the request for multiple quotes and the indication of selection criteria they do not enable the excluded economic operators to contest the decision of the contracting authority regarding the correspondence of the products offered to your needs. The direct award is not configured as a tender procedure, therefore there is no obligation to publish rankings, scores or other merit rankingssubject to compliance with the deadlines set for the submission of estimates.

The role of administrative discretion

The ANAC opinion underlines the discretion of the contracting authority in identifying the methods of documenting the experiences suitable for the award. The ANAC Vademecum on direct assignments highlights how this discretion also extends to the evaluation of previous experience, which does not necessarily have to be identical to the subject of the contract, as long as it is considered sufficient to guarantee the execution of the contract.

In this specific case, the contracting authority carefully evaluated the estimates submitted within the established deadlinesreserving the right to choose the most suitable operator on the basis of discretionary criteria, without this leading to violations of the law.

The complaints of the excluded operators

Another central point of the opinion concerns the complaints of the excluded economic operators, who they cannot appeal the decision of the contracting authority for supposed procedural irregularities. The ANAC clarified that, since it was a direct assignment, there was no reason to consider it harmed the interest of the excluded company. The objection of one of the economic operators was upheld baselessas there had been no negotiated procedure or substantial breaches of the law.

In particular, the company complained about the lack of advertising and transparency in the assignment, but ANAC confirmed that, being a direct assignment, no further advertising obligations were necessary. There publication on the praetorian notice board of the contracting authority it was enough to guarantee the regularity of the procedure.