chaos in public procurement
The undersigned Councilors of the Republic, considering that the public procurement sector, in recent times, has aroused a particular future following some interventions by the current Executive. Given the bizarre amalgamation between the Purchasing Office and the Personal Data Protection Office, which occurred in the absence of a specific delegation of law, or in any case not respecting its boundaries, leaving serious doubts on the legitimacy of this regulatory act. Considering that the method followed by the government for the management of this delicate matter seems to be that of the continuous change of the reference legislation, without often daring adequate notice to the Contracting Stations and to the Public Spending Control Bodies, which took note only in the time after the ” entry into force of the regulatory changes, with the risk of carrying out illegitimate acts and exposing the Administration to appeals by suppliers. Recalling the improvisation and inexplicable repeal of the rules contained in art. 21 of Legislative Decree 29 January 2021, n. 14 (repealed by art. 21, paragraph 1 of Legislative Decree no. 85 of 30 April 2021) and in art. 3 of Legislative Decree 29 January 2021, n. 14 (repealed by art. 18, paragraph 2 of 31 December 2021, n.215) which, DL, repealed the obligation to extend / renew supplies expiring the pandemic phase, and the procedures for the purchase in via urgency of goods connected to the health emergency (which gave rise to the infamous mess of the “FFP2 mask case”, already the subject of questioning by this political force), when the whole health emergency was in its most acute phase. Considering that the cases cited do not seem to have been exceptions as some deliriums of the State Congress have further created disorientation both in the offices and between users and suppliers. And in particular: ➢ the provision of the rental service of a large multifunctional machine for the Public Administration’s Press Service; ➢ the modification of the award criteria for tenders worth more than €. 25,000.00. With regard to what should have been a banal supply of services (i.e. the provision of the rental service of a large multifunctional machine), it is clear that, in the short space of time, three congressional resolutions which denote, how much less, some confusion in the addresses of the Executive which: 1. first approves the extension of the rental service with the old supplier (expiring on 31 December 2021), for a further three years, given the economic reasons documented by the Station Contractor (Resolution No. 11 of 13 December 2021); 2. a month and a half later, he changes his mind and, disavowing just approved, decides how much to arrange a limited extension of only six months (until June 2022), in order to adopt all the preparatory activities for the launch of a new tender (Resolution 17 of January 31, 2022); 3. finally, it decides for a new extension of another six months (Resolution no. 12 of 30.05.2022), given the launch of the new Procurement & Privacy Office (!); everything – it is legitimate to hypothesize – in the general bewilderment of the relevant Offices (which no longer know whether to make a new tender or an extension of the previous one) and of the reference supplier who, on an almost monthly basis, receives contradictory indications about the continuation of the service . Considering also that, if that were not enough, the Government (and DGFP?) Have ventured into reckless ones to complicate (unnecessarily) the already convoluted reference legislation and, with Congress Resolution no. 30 of 21 February 2022 the Contracting Stations are required to adopt the award system (much more complex than that of the lowest price) of the most advantageous economic offer every time the auction base is higher than €. 25,000.00. Assessed that it is very easily conceivable that the adoption of such an operating rule, with the following complexity and risk profiles inherent in it, could cause a period of total paralysis in the Contracting Stations which, or suspended the launch of new tenders, o prohibit the procedure in violation of the aforementioned resolution, as it is impossible to comply with it. So much so that, with the Congress Resolution no. 22 of March 28, 2022, Congress suspended the effectiveness of its previous resolution and postponed its entry into force to July 1 of this year. All this exposed, the Government is questioned on the following points: With reference to the Deliberation of the State Congress n. 17 of January 31, 2022: 1. what is the content of the references of the Secretary of State for Internal Affairs and Public Administration and of the Secretary of State for Finance and Budget; 2. which resolves the defects of the previous Resolution of the State Congress n. 11 of 13 December 2021 such as to the need for its rectification or the irregularity, pursuant to art. 23 of the Regulation of 22 March 2017, n. 3 or such as to constitute a serious “error or material material” pursuant to art. 40 of the Law of 5 October 2011, n. 160, not remediable with a mere Errata Corrige; 3. what were the technical and cost saving reasons and any supporting documentation produced, for which the Contracting Authority, Purchasing, General Services and Logistics Unit, with its own note dated 7 December 2021, prot. n. 130699, had proposed the extension for a further three years of the tender n. 12/2015 of 10 August 2015 “Provision of management and maintenance services for the Public Administration Press Center”; 4. why did the initial decision to extend the current supply relationship, considered by Congress to be of interest to the Administration and in line with the principles of economy, effectiveness, efficiency, timeliness and correctness as per art, occurred. 3, paragraph 1, Delegated Decree 2 March 2015 n. 26, a month later, was overtaken by the decision to launch a new call for tenders; 5. what can justify the award of supplies at justified economic conditions that are more unfavorable for the Administration than the extension of an existing tender; 6. if the extension of tender no. 12/2015 of 10 August 2015 was effectively in the exclusive interest of the Administration and in line with the principles of economy, effectiveness, efficiency, timeliness and correctness pursuant to art. 3, paragraph 1, Delegated Decree 2 March 2015 n. 26, indicating the relative reasons; 7. if a new tender, as an alternative to the extension of tender n. 12/2015 of 10 August 2015, may actually be in the exclusive interest of the Administration and in line with the principles of economy, effectiveness, efficiency, timeliness and correctness pursuant to art. 3, paragraph 1, Delegated Decree 2 March 2015 n. 26, indicating the relative reasons; 8. who is the supplier of the tender n. 12/2015 of 10 August 2015; 9. if the significant damage to image for the country in the matter in question has been considered, the entrustment of the supplier of tender no. 12/2015 of 10 August 2015, which, by rightfully counting (by virtue of Resolution no.11 of 13 December 2021) on a further three-year extension, after about a month, is faced with an inexplicable change of course of the Government that has called everything into question and has decided to undertake a new tender, perhaps with the risk for the Administration of even onerous economic conditions, in a historical moment in which the containment of public spending should be the main objective of the Government . With reference to the Deliberation of the State Congress n. 30 of 21 February 2022: 1. what were the reasons for which the DGFP proposed to the Congress to adopt a resolution which, in contrast (and in violation?) Of DD 26/2015, against the Contracting Stations – compulsorily and eliminating any possibility of evaluating them – the burden of adopting such a complex award criterion; 2. whether the adoption of the criterion of the most advantageous economic offer could entail for the Administration the risk of purchasing furniture at higher prices than the hypothesis of awarding with the criterion of the lowest price; 3. given the risk of “paying more” for supplies, by virtue of what reasoning is expected to overturn the contracting authorities to judge the fairness of the price and, if not congruous, to cancel or revoke the tender, with inevitable repercussions negative for the Administration which consequently cannot have access, within the foreseen times, to the requested supplies; 4. whether the adoption of the criterion of the most advantageous economic offer could entail a greater risk of corruption for the Contracting Stations, since it is possible to “construct” the mechanism for assigning scores taking into account the specific characteristics of the competitor to be favored and whether the GRECO has in this sense warned against the use – moreover in a generalized way – of such an award method; 5. basis of what information and for what reasons and purposes the Contracting Stations must insert “minimum entrepreneurial requirements” in the tender documents, and if this autonomy is an indication against the principle of the entrepreneur’s autonomy in setting up his own business organization and if, furthermore, such indications can limit all corruption, being organizational able to favor omitting certain enterprises; 6. if the Contracting Stations have communicated their difficulties in daring to implement a resolution so as to force the Congress to suspend its entry into force and to postpone it to about 1 July A written response and the presentation of all supporting documentation are required of the answers. With observance.
Cs – Future Republic