Digitization of tender procedures and new certified platforms: Operability and current issues

When fully implemented, the provisions of the new Public Procurement Code^[1] (“Code”) on the digitization of tender procedures will cover digital management of all phases of the procedure, from planning and design to the award and execution of contracts.^[2]

Among the main pieces of infrastructure needed to achieve full digitization are the eProcurement platforms^[3] (“EPPs”) used by contracting authorities to manage individual tenders that interface with the National Database of Public Contracts (“NDPC”) managed by the Italian Anticorruption Authority (“Autorità Nazionale Anticorruzione” or “ANAC”). Their use is mandatory for procurement under the Code, with the exception of a temporary exemption for direct procurement of a value of less than EUR 5,000.^[4]

This is a remarkable paradigm shift: Italian contracting authorities have had to start managing their procurement procedures[5] entirely electronically, without any transitional period for implementation of the new rules and procedures, and often using infrastructure (EPPs) from other central purchasing bodies and contracting authorities. According to the latest update available on the ANAC website,^[6] the initial familiarization phase is over and digitization is already in full swing. The number of procedures activated by the end of January—almost 100,000 CIGs per week—is broadly in line with last year’s figures.

However, despite the successful launch of numerous procedures using the new digital modalities, a number of technical and operational problems have been reported by the awarding authorities. These range from malfunctioning of ANAC telematic infrastructure to problems with management of platform access to lack of adequate training for the staff of the authorities responsible for using the EPPs. Moreover, procurement platforms must be pre-certified by the Italian Digital Agency (“Agenzia per l’Italia Digitale” or “AgID”) and there are currently just over 50 of them, with the inevitable consequence that most contracting authorities are forced to use platforms made available to them by other entities.

Functionality of eProcurement platforms

According to the Code, EPPs consist of a set of interconnected and interoperable IT services and systems used by contracting authorities at various stages of the tender process. In a nutshell, EPPs are the means for individual contracting authorities to implement digitally:

• the planning phase of a procedure;
• publication of notices;
• the procurement and award phase;
• the contract execution phase, including technical, accounting, and administrative oversight.

Through EPPs, procuring entities can obtain a CIG, or tender identification code (which will no longer go through the SIMOG/SmartCIG system^[7]), and share the documents and notices prepared for the initial stages of the procedure.

Because the EPPs and the NDPC interoperate—as guaranteed by the ANAC through the Public Contracts Platform^[8]—the EPPs will benefit from the NDPC and can access information provided by it. For example, they can access documents that are not in the possession of the contracting authority (such as documents and certificates required for oversight of the economic operator, which are available from other administrations^[9] whose systems interoperate with the NDPC^[10]) and fulfill their transparency and publication obligations by sending the relevant documents to the EPP for legal publication—in one of the sections of the NDPC—and access the virtual file of the economic operator (“FVOE”).

Certification process

Only EPPs that have been previously certified by the AgID, which assesses their compliance with the technical requirements it established^[11] , can be used by contracting authorities.^[12]

Another AgID document—the “operating method^[13] integrated with the information provided on the authority’s website^[14]”—contains modalities for submitting a certification application, provides the forms to be filled in and sent to the authority via certified email, and governs the various stages that occur through such time as a certificate is issued to the applicant.

The certificate issued by the AgID is valid for a maximum of one year. To keep the certificate active, under penalty of forfeiture, within that year the platform owner must apply for and obtain certification of the platform from a third-party compliance assessment body that certifies its compliance with the technical requirements set by the AgID.^[15]

The certification obtained from a third-party body and reported by the owner to the AgID is valid for 24 months from the date of issue, during which time the platform must undergo an annual surveillance audit by the same third-party body. Before the end of this two-year period, the platform owner must then apply for and obtain renewal of the certificate and submit it to the AgID.

The AgID transmits certificates issued to platform owners to the ANAC, which enters the date in a special list kept by the authority.[16] That list currently includes 57 platforms that belong to both public and private entities. Platforms can also be certified for one or more phases of the contract lifecycle—which essentially correspond to the functions identified by the AgID—and, therefore, a contracting authority may find itself using different EPPs for the various activities involved in the same call for tenders (e.g., one platform for planning and tendering activities; one for publication and compliance with transparency obligations; and another for managing the award and contracting phase).

Platform operation: Where do we stand?

Although ANAC’s communiqués exhibit optimism, since the digitization rules came into effect a few months ago the contracting authorities have encountered issues, including application issues. Some of these are described in a document from the National Association of Italian Municipalities (“Associazione Nazionale dei Comuni Italiani” or “ANCI”) made available to the public on the association’s website.^[17]

Among the most important, are the following:

Use of multiple platforms, including those of other administrations

As mentioned above, in some cases administrations have to use several EPPs, often belonging to different entities, to manage a single tender procedure. In addition to the fact that managing multiple platforms may be time-consuming, a person working on the platform—a procedure manager (“RUP”) or phase manager—must learn to use different applications. Although these are certified and therefore at least somewhat uniform, the specifications for use may differ. Similar problems may arise when an RUP decides to change the platform used to manage one or more phases of the procedure.

Access via SPID

Some entities have pointed out that having managers (or phase managers) use the SPID (the public digital identity system) to access platforms creates difficulties for the entities in charge of operational management of the procedure, since it requires these entities to be present for a series of activities that do not require any decisions or expressions of intent from them. These are merely procedural steps, such as the acquisition of a CIG. The ANCI points out that it would be useful to distinguish between decision-making activities that require the presence of qualified people who shoulder the corresponding responsibilities and other activities that could be carried out in a more flexible manner by involved offices (or, alternatively, to allow those in other positions to access and use the platforms).

General technical malfunction

Many entities have reported malfunction of the ANAC Public Contracts Platform (which guarantees access and interoperability between EPPs and the NDPC), such as difficulties and errors in accessing the platform, freezing of some pages, slowdowns, and inability to obtain CIGs. Details of these and other incidents appear in the ANCI document.

Training in the use of the platforms

To date there has been a lack of initiatives at the central level to train staff to use the entire infrastructure, which includes EPPs and the NDPC and the sections thereof. This type of initiative should be supported and coordinated by the authorities (the ANAC and the AgID first and foremost) and should take into account the fact that many administrations use different EPPs developed by different owners to manage various phases of the same tender.

Additionally, the ANAC has taken some positive steps to address these problems.

On March 1, the ANAC carried out a technical and maintenance survey of the public procurement platform, apparently in order to address malfunctions noted by ANCI and mentioned above.

In addition, the extensive FAQ on the authority’s website,^[18] which has been updated, deals with numerous issues, including operational issues, that have arisen during these early months of application of the rules on the digitization of tender procedures. This reflects the ANAC’s efforts. For example, after the new Public Procurement Code took effect, the ANAC set up a permanent round table with representatives of the ANCI and other local authorities to analyze critical issues arising from the system and identify possible solutions, some of which are specifically addressed in the FAQ on the authority’s website.

Despite the difficulties, it seems that full implementation of the digitization rules will proceed and that any future problems will be dealt with on a case-by-case basis, without special extensions for entities and operators implementing the new rules

All in all, this seems to be good news, provided that such problems do not have significant impact on the operation of the entities and the conduct (and completion) of tender procedures.

[1] Legislative Decree No. 36 of March 31, 2023.

[2] As of January 1, 2024.

[3] Pursuant to Article 25 of the Code, digital procurement platforms consist of a set of interconnected and interoperating IT services and systems used by contracting stations to carry out the planning, design, publication, award, and execution of contracts, thus ensuring full digitization of the public contract lifecycle.

[4] ANAC has provided the possibility for contracting stations to use a web interface made available by the authority for all contracts below a EUR 5,000 threshold and as an alternative to EPPs, but only until 1 October 1, 2024 (https://www.anticorruzione.it/-/appalti-interfaccia-web-esteso-anche-agli-affidamenti-diretti-di-importo-inferiore-a-5.000-euro ).

[5] The full effectiveness of the Code was extended by six months from its full applicability date of July 1, 2023.

[6] https://www.anticorruzione.it/-/digitalizzazione-contratti-pubblici-a-pieno-regime-quasi-100.000-cig-a-settimana-come-nel-2023.

[7] The SIMOG/SmartCIG system will remain active only to allow the display of SmartCIGs acquired prior to January 1. Detailed indications on how to acquire CIGs can be found in Resolution No. 582 of December 13, 2023 and in the ANAC FAQ available at https://www.anticorruzione.it/-/digitalizzazione-dei-contratti-pubblici.

[8] https://www.anticorruzione.it/-/piattaforma-contratti-pubblici.

[9] Such as the registry of natural and legal persons, the business registry, the Ministry of Justice, and the Internal Revenue Service.

[10] In addition to the Legal Publicity Platform, the NDPC is composed of the following sections: the public contracts platform; the economic operator’s virtual file; the single register of contracting stations; the register of economic operators; and the computerized records database.

[11] In its Decree of June 1, 2023, no. 137.

[12] AgID Resolution No. 137 of June 1, 2023.

[13] https://trasparenza.agid.gov.it/archivio28_provvedimenti-amministrativi_0_123643_725_1.html.

[14] https://www.agid.gov.it/it/piattaforme/procurement/certificazione-componenti-piattaforme.

[15] If the application to the third-party assessment body is submitted while the certificate issued by the AgID is valid, the certificate’s validity is extended by a three additional months for the purpose of obtaining certification from the third-party body.

[16] Available at http://dati.anticorruzione.it/#/regpiacert.

[17] https://www.anci.it/lettera-anci-ad-anac-su-criticita-digitalizzazione-appalti-nicotra-incontriamoci-per-risolverle.

[18] https://www.anticorruzione.it/-/digitalizzazione-dei-contratti-pubblici.