Art. 125. Use of the negotiated procedure without prior call for competition
1. Contracting entities may use a negotiated procedure without prior call for competition in the following cases:
a) where, in response to a procedure with a prior call for competition, no tenders or no suitable tenders or no requests to participate or no suitable requests to participate have been submitted provided that the initial conditions of the contract are not substantially altered. A tender shall be considered not to be suitable where it is irrelevant to the contract, being manifestly incapable, without substantial changes, of meeting the contracting entity’s needs and requirements as specified in the procurement documents. A request for participation shall be considered not to be suitable where the economic operator concerned shall be excluded or may be excluded or does not meet the selection criteria laid down by the contracting entity pursuant to Articles 80, 135 and 136;
b) where a contract is only intended for the purpose of research, experiment, study or development, and not for the purpose of securing a profit or of recovering research and development costs, provided that award of such contract does not prejudice the competitive award of subsequent contracts which do seek, in particular, those ends;
c) where the works, supplies or services can be supplied only by a particular economic operator for any of the following reasons:
1) the aim of the procurement is the creation or acquisition of a unique work of art or artistic performance;
2) competition is absent for technical reasons. The exception set out in this point shall only apply when no substitute or reasonable alternative exists and the absence of competition is not the result of an artificial narrowing down of the parameters of the procurement;
3) the protection of exclusive rights, including intellectual property rights. The exception set out in this point shall only apply when no substitute or reasonable alternative exists and the absence of competition is not the result of an artificial narrowing down of the parameters of the procurement;
d) in so far as is strictly necessary where, for reasons of extreme urgency brought about by events unforesn and unforeeable by the contracting entity, including however those cases of cleaning and securing of contaminated sites within the meaning of Part IV, Title V of legislative decree n. 152 of 3 April 2006 and of concrete and actual danger of irreparable damages to cultural heritage, the terms established for the open procedures, restricted procedures, negotiated procedures with a prior call for competition cannot be respected. The circumstances invoked to justify extreme urgency shall not in any case be attributable to the contracting entity.
e) in the case of supply contracts for additional deliveries by the original supplier which are intended either as a partial replacement of supplies or installations or as the extension of existing supplies or installations, where a change of supplier would oblige the contracting entity to acquire supplies having different technical characteristics which would result in incompatibility or disproportionate technical difficulties in operation and maintenance;
f) for new works or services consisting in the repetition of similar works or services assigned to the contractor to which the same contracting entities awarded an earlier contract, provided that such works or services conform to a basic project for which a first contract was awarded according to a procedure in accordance with Article 123. The basic project shall indicate the extent of possible additional works or services and the conditions under which they will be awarded. As soon as the first project is put up for tender, the possible use of this procedure shall be disclosed and the contracting entities, when applying Article 35, shall take into account the total cost estimated for subsequent works or services;
g) for supplies quoted and purchased on a commodity market;
h) for bargain purchases, where it is possible, in presence of a particularly advantageous opportunity available for a very short time, to procure supplies at a price considerably lower than normal market prices;
i) for purchases of supplies or services under particularly advantageous conditions from either a supplier which is definitively winding up its business activities or the liquidator in an insolvency procedure, an arrangement with creditors or a similar procedures;
j) where the service contract concerned follows a design contest organised in accordance with the provisions in this Code and is intended to be awarded, under the rules provided for in the design contest, to procure supplies to the winner or to one of the winners of that contest; in the latter case, all the winners shall be invited to participate in the negotiations.
see Guideline ANAC no. 8: Resolution no. 950 of September 13, 2017. Published in the Italian Official Gazette, General Series no. 248 of October 23, 2017 concerning: Use of negotiated procedures without prior publication of the contract notice in case of non-fungible public supply contracts and public services.
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