Avv. Pier Antonio Mori, socio fondatore dello Studio e Team leader for the Will Italia Administrative Law Group, ha partecipato come relatore al Convegno “Infrastructure&Energy Project Vision 2024 Europe, Africa, Turkiye” tenutosi ad Istanbul nelle date del 4-6 Settembre 2023, con intervento dal titolo “The Italian regulamentation of public tenders for not EU companies”.
L’intervento è stato tenuto insieme all’Avv. Giulia Perri (https://www.linkedin.com/in/giulia-perri-4175bb33/), autorevole Collega del Foro di Milano e membro di Will Italia Administrative Law Group, che si ringrazia per la preziosissima collaborazione.
Si riporta di seguito il testo della relazione:
The Italian public procurement market in 2022 amounted to almost 290 billion euros: it is a very significant figure and of extreme interest for foreign companies, settled in the European Union and also for those which are outside Europe.
The Italian market, like that of the European Union, is substantially open.
Not only Italian and EU companies can participate in public tenders, but also companies settled in countries that have signed reciprocity agreement with the European Union.
Even companies from third countries that do not have agreements with the European Union can participate in Italian tenders under certain conditions.
Bilateral reciprocity agreements between the non European countries and European Union have the function of guaranteeing mutual respect for free competition and equal treatment, as well as the protection of the fundamental principles of the European Union.
The companies of the states that have signed these Bilateral agreements have the right to have a tender regime no less favorable than that of their Italian and European competitors.
The Italian contracting authorities must therefore adopt calls for tenders that respect this criterion. Otherwise the notices would be illegitimate and contestable before the Administrative Judge. Therefore, great attention must be paid to the content of the notices as soon as they are published.
The fundamental sources of regulamentation of public tenders in Italy are the European Regulamentation n. 1031 of 2022, the Italian Legislative Decree 31 March 2023 no. 36 and in particular the articles 65 paragraph 1, 69, 170 and the “Guidelines on the participation of third-country bidders and goods in the European Union procurement market – Communication from the Commission C (2019) 5494 final”
The companies established in countries that do not have signed bilateral agreement also have access to Italian and European public tenders if the notice for tender allows so. If notice for tender doesn’t allow participation, it is necessary to check if it doesn’t provide for unjustified exclusions or limitations in this regard.
In fact, tenders must provide for exclusions or limitations only in case the European Union has adopted International Procurement Instruments (so called IPI) for States that do not guarantee reciprocity of participation in public tenders.
There may be other limitations in the sector of supplies of essential public services, in the event that more than 50% of the products offered originate from non European countries that do not have bilateral reciprocity agreements with European Union.
So, it is always necessary to verify that the announcement does not contain unjustified limitations or exclusions, which can be contested before the Administrative Judge.
A non European company that wants to participate in a public tender in Italy must verify whether it belongs to a country that has bilateral agreements with European union and must examine the tender notice, which constitutes the tender law, in addition to European regulation and Italian law (the so called Public Contracts Code).
Infact, public tender notice – must comply with both European and Italian national regulamentation.