The Authority for the Supervision of Public Contracts has been established by law n. 109/1994 with the aim of supervising public contracts in order to grant compliance with principles of transparency, rightfulness and competition among operators in the public procurement market.
The Authority is an independent body with regard to functions, evaluation and administrative responsibility and is autonomously organized.
The Board of the Authority is composed by seven members appointed by the Presidents of the two Chambers of the Italian Parliament, selected from personalities of high professional profile. From amongst those members the President of the Authority is elected by the members themselves, and decisions are taken by the majority of the votes.
Afterwards, D.P.R. 34/2000 appointed the Authority to the role of supervising the system of quality certification of the firms operating in public contracts market. This means, inter alia, that the Authority has the power - which was already recognized by a large number of pronouncements in the Italian Courts- to revoke and suspend SOA¹ authorizations.
According to art. 40 par. 4 lett g of the D.Lgs. 152/2008² (last modification of D.Lgs. 163/2006 “Public Contracts Code”), the Authority may impose pecuniary or restrictive sanctions when detecting any irregular, unlawful or illegal behavior of any SOA.
D.Lgs. 163/2006 (“Public Contracts Code”), implementing directives 2004/17CE and 2004/18CE, identified the Authority as the responsible entity for the implementation of community law control, provided by art. 81, par. 2 of aforementioned directive 2004/18CE.
Consequently, the name of the Authority has changed into the current one and the supervision functions on public contracts for works has been extended also to services, supplies and on procurement procedures in water, energy, transport and postal services sectors (dir 2004/17CE).
Following the described enlargement of functions, and the recognition of procurement as a strategic profession rather than simply an administrative function, employee′s number has been increased from 237 units to current 336, by decree of the President of the Council of Ministers dated 23-07-2007.
According to law 266/2005, since 2006, financial autonomy as also been recognized, on the basis of a contribution fee charged to operators and contracting authorities who take part into awarding procedures.
For more information on the payment of the contribution fee, please click here.
The Authority supervises the entire public procurement system, both at a State and at a Regional level, in order to grant compliance with the principles of rightfulness and transparency in awarding procedures and with effective and convenient execution of contracts, as well as compliance with competitions rules within each single tender.
In particular it supervises the correct application of laws and regulations, while verifying the regularity of awarding procedures and the economic efficiency in contracts execution, also through sample surveys; it also ensures that any injury does not occur for the exchequer.
The Authority reports both to the Parliament and Government on particularly serious cases concerning non observance or distorted application of public procurement legislation; it also proposes legislative modifications to the Government on the same matter and suggests revisions of implementing regulation to the Minister of Infrastructure.
Every year, the Authority reports to the Parliament on the activity that has been developed.
The main competences of the Authority can be summarised as follows: supervision activity, activity of legislative proposal, sanctioning functions, power of crime detection and the denouncing to the Criminal Court and to the Court of Accounts, activity of interpretation of legislation; and the auxiliary reporting functions to the Parliament and the Government.
With reference to the phenomenon of corruption in public procurement the Authority covers an important role of prevention, particularly in those phases of public procurement procedures which are also defined as “grey areas”³; these phases, such as the pre-bidding and post-bidding phases and the exceptions to competitive procedures, are less subject to transparency requirements and, therefore, potentially vulnerable to corruption.
In order to defeat or prevent unlawful behaviors, the Authority signed n. 17 Memoranda of Understanding providing “protection clauses”4;, aimed at highlighting to the bidders that the participation in awarding procedures is forbidden when illicit behavior is discovered in the records of the participant or candidate. These Memoranda concern a series of risky situations, which, although not provided by legislation, point out various cases of illicit behaviors.
The Memoranda have been created since a large number of requests by market operators underlined the exigency of new instruments for preventing corruption, other than the already existing ones (provided by anti-mafia legislation), in order to realise a stronger preventing action; this exigency is also highlighted by several pronounces of Consiglio di Stato (see, inter alia, sent. 5903/2000), stating that Public Administrations, during awarding procedures, shall not proceed to selection whenever a suspected case of corruption occurs, within any phase of the procedure.
1 Società Organismo Attestazione: private firms with public functions, entitled to produce quality certification after checking the fulfillment of the requirements.
2 Official Journal n. 277, October 2nd 2008
3OECD Global Forum on Governance: fighting corruption and promoting integrity in public procurement
4Det. of the Authority n. 14 on 15-10-2003