Antitrust Infringements As A Ground For Exclusion From Participation In Public Procurement Procedures

Author:Ms Paolisa Nebbia
Profession:Shearman & Sterling LLP
 
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On 19 April 2016, legislative decree n. 50/2016 containing the new Italian Public Procurement Code (PPC) entered into force. The PPC aims to implement, among others, Directive 2014/24/EU which sets out, at Article 57, a number of mandatory and discretionary grounds for excluding an economic operator from public procurement procedures. The discretionary grounds also include anticompetitive conduct.

In December 2016, the Italian Anti-Corruption Authority (ANAC) adopted Guidelines aiming to shed light on the application of the exclusion provisions, with a view to promoting the adoption of common practices by contracting authorities. The Guidelines, however, raise more questions than they answer and are likely to create considerable uncertainty for economic operators as to the relevance of antitrust infringements for the purposes of participating in public procurement procedures.

Background

Article 57 of Directive 2014/24/EU provides, at paras. 4 (c) and (d) respectively, that a contracting authority may exclude (or may be required by Member States to exclude) an economic operator where it can demonstrate by appropriate means that the latter is guilty of grave professional misconduct, which renders its integrity questionable, or where it has sufficiently plausible indications to conclude that it has entered into agreements with other economic operators aimed at distorting competition.

The implementing provision of the PPC, Article 80, para. 5, lett. c), provides for the possibility to exclude an economic operator where, among others, the contracting authority can demonstrate by appropriate means that the latter is guilty of serious professional misconduct, which renders its integrity or reliability questionable, but does not reproduce the Directive's provision concerning anticompetitive agreements.[1]

The ANAC Guidelines

The "Guidelines n. 6, implementing D.lgs. n.50/2016 and containing an indication of appropriate evidence and deficiencies in performance of a previous contract that could be considered significant for the demonstration of the circumstances for exclusion in art. 80, para. 5, lett. c) PPC" ("the Guidelines") entered into force on 3 January 2017. They provide a non-exhaustive list of grounds for exclusion also with regard to serious professional misconduct and to other situations that may cast doubt on the integrity or reliability of the economic operator.

The situations listed in the Guidelines do not imply the automatic...

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