With a rather effective expression, a “tailored contract” is defined as that tender notice which is suspected to be formulated to have a pre-established winner or to limit the number of competitors. It is on the basis of this hypothesis, which concerns the administrative sphere and not the criminal one, that the Regional Administrative Court of Veneto has frozen the open procedure banned byUniversity of Padua for a supply of goods and services of approximately 14 million euros, VAT excluded. This is a “framework agreement” lasting four years “for the supply and installation of audio video equipment and equipment, including ancillary services, for the university premises”. Practically all of it the equipment to set up the classrooms and the laboratories.
The joint-stock company Impianti di Carate Brianza, intending to participate, believed that it was faced with a tender that was not only complicated, but built around the possession of a corporate and professional quality certification, which only very few economic entities have in Italy. One of these, cited in the appeal to the TAR, has Already the management of the University’s technological order and would have an advantage over others due to having the certification UNI: 11799:2020 which among other things was born not from a public body, but from Siec, a private law association that promoted it.
The appeal makes noise because it overshadows the existence of a tender with the winner already designated, but even more noise was made by the decisions taken with great promptness first by the president of the second section of the TAR, Grace Flaim, then from the same college. The judges accepted the precautionary request and suspended the procedure, already setting the hearing for October 18th to discuss the merits of the request for cancellation of the tender announced by the university.
The announcement was published on April 26 last, with the deadline for submitting offers by May 27th (date later extended to June 17th). Spa systems, assisted by the lawyer Roberta Bertolani, presented the appeal believing that the UNI 11799 certification constitutes a form of limiting participation in the contract. What is it about? Of a standard that “defines the requirements of the (executive) design, installation, configuration and regulation, programming and technical verification service, provided by companies in the innovative market of the integration of audio, video and control systems”. A seal of quality born from private companies.
In fact, the appeal states: “The tender documents are littered with requirements and conditions of execution linked to the possession of the certification referred to in the recently created UNI: 11799:2020 standard (November 5, 2020), owned by a handful of Italian companies (mostly associated SIEC, private law association that promoted it) and, as far as we know, by no European company”. The most delicate and controversial fact of the matter is that “SIEC has the company among its founders 3P Technologies of Padua, outgoing manager of the contract in question, precisely for being, at the time of the award, the only participating company in possession of the certification in question”.
Beyond the technicalities, the complaint is that the announcement is tailor-made for the 3P, given the clauses it contains. For example, the UNI certification becomes a requirement to enter the race. “In this way – write the appellants – the University introduces a qualification system parallel to the official one, defined by the legislator through a UNI certification held in Italy by 8 businesses or certifications issued by private law entities”. Instead, the 2023 Procurement Code would exclude quality certifications among the participation requirements, while allowing them “as conditions of execution or selection criteria for offers”.
Added to this is the request to have carried out similar works, with the same certification, “up to a maximum of three contracts with a total amount of no less than 3 million euros in the three-year period preceding the expiry date of the tender”. A requirement that only one or two economic entities own. The issue goes beyond the Padua case, also because in other Italian situations the tenders with the quality clause were canceled after the appellant company appealed.
The suspension of the tender decided by the TAR, while postponing the merits judgment set in October, highlights how they have a “smoke of validity” some of the complaints. “Considering the recent establishment of the UNI 11799 standard… at the current date the qualified companies would be in the order of ten or fewer and the group of subjects in possession of the required experience gained through contracts compliant with the described requirements appears extremely limited and the contested provision It therefore seems to introduce a serious limitation of competition”.
