Law Decree No. 18 of March 17, 2020 (“Decreto Cura Italia”) and Law Decree No. 23 of April 8, 2020 (“Decreto Liquidità”) provide for extraordinary measures to cope with COVID-19 emergency, by introducing, among others, several exceptions to the ordinary rules governing the public procurement process in Italy.
Decreto Cura Italia aims at accelerating the procedures for the awarding of contracts by public authorities in order to ensure the supply of essential goods and services in connection with the COVID-19 epidemic needs. In addition, such Decree regulates the impact of the emergency on the fulfilment of contractual obligations.
Both Decreto Cura Italia and Liquità Decree introduce certain derogations from the rules regarding the application of terms/time limits of administrative procedures and the effectiveness of administrative acts.
1. Main provisions introduced by the Decreto Cura Italia and Decreto Liquidità
Purchases connected to the development of IT systems for smart working and network services for the access of citizens and businesses (Article 75 of Decreto Cura Italia)
Contracting authorities can use a simplified procedure for the purchase of cloud IT services, preferably based on a software as a service model.
Specifically, it allows contracting authorities and independent administrative authorities to use the negotiated procedure, without a prior call for tender, to buy the abovementioned IT services; this rule will be effective until December 31, 2020. Contracting authorities shall select a contractor from at least four eligible providers, which must also include one innovative start-up or small- or medium-sized innovative enterprise.
Delays and breaches of contractual obligations resulting from the implementation of containment measures and price anticipation in the field of public contracts (Article 91 of Decreto Cura Italia)
In case of delay or breach of a contractual obligation, the need to comply with the containment measures for the COVID-19 emergency–period shall qualify and be taken into account in the assessment of the debtor’s liability, the application of penalties and/or the termination of the public contract.
Moreover, the Curia Italia Decree extends to emergency deliveries the possibility to pay the contractor 20% of the contract value within fifteen days from the actual start of the service. This provision aims at ensuring immediate liquidity in favour of companies in case of anticipated delivery to speed up the start of the service.
Donations in support of the fight against the epidemiological emergency connected with COVID-19 (Article 99 of Decreto Cura Italia)
Public healthcare facilities are allowed to purchase goods and services through direct negotiation, without the obligation to carry out a prior consultation with two or more economic operators, provided that such purchases (i) are aimed at addressing the COVID-19 emergency and (ii) are financed exclusively by donations made by individuals or private legal entities.
This simplified procedure shall apply only during the COVID-19 emergency–period and, in any case, until July 31, 2020.
Platforms for distance learning (Article 120 of Decreto Cura Italia)
Educational institutions may purchase digital platforms and devices necessary to enable distance learning by using framework agreements and the electronic marketplace of the public administration. If this is not possible, educational institutions are authorized to deviate from the ordinary rules set forth by the Public Procurement Code.
Suspension of terms of administrative procedures and effects of expiring administrative acts (Article 103 of Decreto Cura Italia, as amended by Article 37 of Decreto Liquidità)
Any terms/time limits, both final and intermediate, relating to administrative procedures are suspended between February 23, 2020 – May 15, 2020.. Furthermore, all certificates, permits, concessions or authorizations expiring in the January 31, 2020 – April 15 2020 time frame shall remain effective until 15 June 2020.
2. National Anti-Corruption Authority: guidance to contracting authorities
The resolution no. 312 of April 9, 2020 issued by the National Anti-Corruption Authority (Autorità Nazionale Anticorruzione – ANAC) provides useful instructions for contracting authorities regarding the tender procedures and the performance of the related public contracts during the COVID-19 emergency.
Specifically, such resolution clarifies certain aspects applicable: (i) when call for tenders, public notice or invitation to tender has not been published yet, (ii) when the selection procedures are in progress and (iii) for the performance of public contract.
As to the first case, ANAC established that public administration should only launch tenders that are considered urgent and that cannot be postponed.
Secondly, ANAC specified that the suspension of the terms applies also to the initial terms relating to the submission of bid requests, as well as to all the internal terms (e.g. terms relating to the check of the adequacy of the offer, terms for carrying out inspections, etc.). All suspended terms will restart to run (for the remaining period) at the end of the suspension period, i.e. 16 May 2020.
ANAC also provided that, under certain conditions, the contracting authorities may decide not to suspend certain tender terms if such terms are in favour of competitors.
As to the performance of public contract, ANAC clarified that the justification set forth in Article 91 of the Decreto Cura Italia applies to public works contracts as well as service and supply contracts. Therefore, in such cases, the COVID-19 emergency shall be considered as a cause of force majeure that may justify delays in the performance of contractual obligations.