In the case of a sub-threshold contract falling within the amount ranges for which the art. 50 of the Legislative Decree. n. 36/2023 (Public Contracts Code) provides for thedirect assignment (paragraph 1, letter. a) and b)), it is possible to use instead negotiated procedures referred to in letters c) and d) of the same paragraph, without prejudice to the adequate justification provided by the Contracting Authority as to the reason for this choice.
Negotiated procedure instead of direct assignment: the OK from MIT
This is explained by legal support from MIT with the
opinion of 3 June 2024, n. 2577 with which it responded to a Contracting Authority on the worsening of the procedure through the use of the negotiated procedure in place of the direct award, with the definition of the terms for the award provided for in the art. 1, paragraph d) and art. 2 paragraph d) of Annex I.3 to the Code, equal to four months and three months respectively.
We remind you that pursuant to art. 50, paragraph 1, of the Legislative Decree. n. 36/2023, it is expected that:
“1. Without prejudice to the provisions of articles 62 and 63, the contracting authorities shall proceed with the awarding of contracts for works, services and supplies of amounts lower than the thresholds referred to in article 14 in the following ways:
- a) direct assignment for works worth less than 150,000 euros, even without consulting multiple economic operators, ensuring that subjects in possession of documented previous experience suitable for the execution of contractual services are chosen, also identified among those registered in lists or registers established by the contracting authority;
- b) direct assignment of services and supplies, including engineering and architectural services and design activities, for an amount of less than 140,000 euros, even without consulting multiple economic operators, ensuring that subjects in possession of documented previous experience are chosen suitable for the execution of contractual services, also identified among those registered in lists or registers established by the contracting authority;
- c) negotiated procedure without tender, after consulting at least five economic operators, where existing, identified on the basis of market surveys or through lists of economic operators, for works with an amount equal to or greater than 150,000 euros and less than 1 million euros ;
- d) negotiated procedure without tender, after consulting at least ten economic operators, where existing, identified on the basis of market surveys or through lists of economic operators, for works of an amount equal to or greater than 1 million euros and up to the thresholds set out in article 14, without prejudice to the possibility of resorting to the procedures for choosing the contractor referred to in Part IV of this Book;
- e) negotiated procedure without tender, after consulting at least five economic operators, where existing, identified on the basis of market surveys or through lists of economic operators, for the awarding of services and supplies, including engineering and architectural services and the design activity, for an amount equal to or greater than 140,000 euros and up to the thresholds referred to in article 14.”
Sub-threshold tenders: ok for negotiated procedures even for lower amount ranges
In answering the question, Legal Support referred to the
MIT Circular dated November 20, 2023,
n. 298, in which the possibility was confirmed for contracting authorities to use open and restricted procedures for sub-threshold contracts instead of the simplified procedures provided for by the art. 50 of the Legislative Decree. n. 36/2023. It is an expression of the principle of favor of the European Union legislator towards “pro-competitive” procedures, which can also include negotiated procedures.
Therefore, the right of contracting authorities to acquire works, services and supplies through a negotiated procedure, even within the amount ranges for which direct award is envisaged, must be exercised in application of the result principle referred to in the art. 1 of the Code which requires, among other things, contracting authorities and granting bodies to pursue the result of the awarding of the contract with the
maximum timeliness, taking into account the prohibition on aggravating the proceedings enshrined in the art. 1, paragraph 2, of Law 241/1990, referred to in the art. 12 of the Contract Code.
In the absence of specific terms for direct assignment (unlike what is provided for in art. 1 of Legislative Decree 76/2020), it is therefore possible to indicate, for the negotiated procedures referred to in letters c) and d) of the art. 50 those provided for in Annex I.3, art. 1, letter. d) and art. 2 letter d), without prejudice, the MIT concludes the need to adequately justify the decision to adopt a negotiated procedure instead of direct assignment also in consideration of the lengthening of the procedure conclusion times resulting from this choice.
