Zagabria 19 January 2016
Alessandro Travisani
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Code of public contracts for works, services
and supplies implementation of Directives
2004/17 / EC and 2004/18 / EC – decree
legislative 12 april 2006, n. 163.
Regulation of implementation and execution
of the Contracts Code Decree of the President
of the Republic of 5 october 010 no. 207
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ANAC
(http://www.anticorruzione.it/portal/public/c
lassic/
MINISTERO INFRASTRUTTURE E DEI
TRASPORTI
(http://www.mit.gov.it/mit/site.php)
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Art. 38 – General requirements
Art. 39 - Suitability to pursue the
professional activity
Art. 41 - Economic and financial standing
Art. 42 - Technical and/or professional ability
Art. 48 – Requirements control
Art. 49 – Availment
Comma 1:
Proof of the economic operator's economic and financial
standing may, as a general rule, be furnished by one or
more of the following references :
 a) statement of at least two banks or brokers
authorized;
 b) balance sheets or extracts from the balance sheets,
or declaration signed in accordance with the provisions
DPR 445/00;
 c) declaration, signed in accordance with the provisions
of this decree on the total turnover of the company and
the amount for the services or supplies in the area
covered by the contract, for the past three years.
Comma 2:
 Administrations shall specify in the notice
requirements that must be satisfied by the
participant, and any references which are to be
produced. The documents referred to in
paragraph 1, letter b), you may not be required
to service or supply contracts established in
Member States which do not require the
publication of the budget. Are illegitimate criteria
that secure, without appropriate reasons,
limitations of access associated with the
company's turnover
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Comma 3
If the competitor can not, for justified
reasons, including that concerning the
establishment or the onset of less than three
years to provide the references requested, he
may prove his economic and financial
standing by any other document considered
suitable by the contracting
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Reserved to the C.A. wide discretion
regarding both the choice of criteria, could be
used by the Code (in whole or in part) or
others indicate that, in their assessment,
result in individual cases effective and useful
to the investigation on economic and
financial standing of the participants in the
tender procedure
The provide of the requirements for
admission to public procedures - which
regards the discretion of the authorities - in
addition to the principles of proportionality
and appropriateness in relation to the type
and purpose of the service for which it was
inviting offers, not It should result in an
unjustified reduction in access of firms in the
market (favor partecipationis).
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Availment
The competitor, individual or consortium
member, or grouped in accordance with
Article 34, in relation to a specific tender for
works, services, supplies can satisfy the
request relating to the possession of the
requirements of an economic, financial,
technical, organizational, or attestation SOA
certification availing the requirements of
another person or other entity of the SOA.
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It is unlawful the rule of a tender that requires
the possession of a minimum overall turnover
in the past three years, amounting to three
times much more than the amount the tender.
This provision restricts the principles laid down
to protect free competition and the market;
The interest of the contracting authority
regards in the contract with a subject that is
reliable in relation to the specific commitments
resulting from participation in the tender and
the possible award
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Can not be considered suitable to
demonstrate the requirement of economic
standing, invoices for the purchase of
equipment and vehicles, in combination with
one bank certificate;
CA’s may determine, within the
administrative discretion, technical and
financial qualification requirements more
stringent and restrictive than the minimum
established by law
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In a competition for the award of a contract
for operating lease of computer equipment, it
complies with the law, the request to have in
the previous three years a specific minimum
computer equipment under operating leases
and not simply making supplies computer
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Consiglio di Stato, sez. V, 07.07.2015 n.
3346
Possibility for the CA to provide in the tender
(lex specialis) can replace a bank reference
with "any other document suitable for the
purpose", in order to ensure strict compliance
required by law
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The CA, therefore, primarily should use the
criteria we mentioned before:
1) Identify the requirements to be admitted
to the tender;
2) How the operators must prove the
possession of such requirements;
3) Provide information support and
documentation (eg. Model self-certification)
to the economic operator
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TENDER
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FORMS – AUTO DECLARATION
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Art. 48: CA’s before the opening of
the offers of the tenders, require to a
number of not less than 10 percent of
bidders, chosen by public extraction,
to prove (in the10 days), the
possession of the requirements of
economic-financial and technicalorganizational
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PROCEDURES
A) The Commission Award
B) The Contracting Authority
C) The Head of Procedures
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Tenderers who fail to provide proof of
possession of the requirements or do not
confirm the statements contained in the
application form or in the offer, subject to the
following penalties:
a) exclusion of the competitor from the
procedure;
b) forfeiture of the provisional guarantee;
c) reporting the fact to the Supervisory
Authority
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Codifies all those principles and
interpretations derived from case law that we
have got to go through so far in applying the
requirements of economic and financial
standing
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Recital 15
Recital 83
Article 58 Selection criteria
Article 60 par. 3 Means of proof
Article 63 Reliance on the capacities of other
entities
ANNEX XII – MEANS OF PROOF OF SELECTION
CRITERIA
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In pursuit of the public interest, we will
always do a good job if we manage to ensure
a balance between the following principles
and criteria:
1) Level playing field, non-discrimination,
maximum participation (free competition);
2) Proportionality and appropriateness of the
requirements
Thank you for your please attenction
Email [email protected]