Art. 213. National Anti-Corruption Authority1. The supervision and control of public contracts and their regulation shall, within the limits of the provisions of this Code, be assigned to the National Anti-Corruption Authority (ANAC) referred to in Article 19 of the Decree Law of 24 June 2014, n. 90, converted, with modifications, by law 11 August 2014, n. 114, which also acts to prevent and counter illegality and corruption.
2. The ANAC, through guidelines, standard calls for tenders, type-contracts and other flexible regulation tools, whatever named, ensures the promotion of efficiency, the quality of the procuring stations’ activities, which provides support to also by facilitating the exchange of information and the homogeneity of administrative procedures and encouraging the development of best practices. Immediately after their adoption, the authority shall transmit to the Parliament the regulatory and other acts referred to in the previous sentence, which are considered to be most relevant in terms of impact, number of potential perpetrators, nexus to criminal cases, abnormal or symptomatic situations of illicit conduct by the procuring stations. The decisions and acts taken by ANAC can be challenged before the competent administrative organs. The ANAC, for the purpose of issuing the guidelines, acquires consultations, analysis and verification of the impact of the regulation, consolidation of the guidelines in integrated texts, organic and homogeneous material, with adequate publicity, even on the Official Gazette, so that the quality of the regulation and the ban on the introduction or maintenance of regulatory levels above the minimum required by law no. 11 of 2016 and this code is observed.
3. Within the powers assigned to it, the Authority shall:
a) supervise on public contracts, including those of regional interest, of works, services and supplies in the ordinary and special sectors and classified contracts or which require specific security measures within the meaning of Article 1 2) f) bis, of Law 6 November 2012, no. 190, as well as on contracts excluded from the scope of the Code;
b) ensure that the performance of public contracts is guaranteed economically and ensures that there is no prejudice to the public treasury;
c) signals to the Government and Parliament, by specific act, of particularly serious phenomena of non-compliance or distorted application of sectorial legislation;
d) advise the Government on proposals regarding changes that are required in relation to current sector regulations;
e) prepares and address to the Government and Parliament the annual report (referred to in Article 1, paragraph 2, of Law No 190 of 6 November 2012 as amended by Article 19, paragraph 5-ter of the Decree-Law of 24 June 2014 , n.90, converted, with modifications, by the law of 11 August 2014, no.114), on the activity carried out highlighting the dysfunctions encountered in the exercise of its functions (as amended by legislative Decree 56/2017 in force from 20-5-2017)
f) supervise the qualification system of executors of public works contracts and exercise related sanctioning powers;
g) supervise on the prohibition of awarding contracts through procedures other than the ordinary ones and control the correct application of the specific derogating rules provided for cases of high urgency and civil protection referred to in Article 163 of this Code;
h) for contracts of particular interest, carry out activities of collaborative supervision, carried out following the signature of memoranda of understanding with the requesting contracting stations, aimed at supporting them in the preparation of acts and in the organization of the entire tender procedure.
h-bis) in order to promote the cost-effectiveness of public contracts and the transparency of the conditions of purchase, it issue relevant guidelines, with no prejudice to sectorial regulations, on the standard costs for work contracts and the reference price of goods and services, using this, on the basis of specific conventions, by relying on support of ISTAT and other national statistical systems, under the most efficient conditions, among the most effective on public administration costs, by making use of additional information contained in existing databases of other Public Administrations and entities operating in the public contracts sector (provision introduced by Legislative Decree 56/2017 in force from 20-5-2017)
4. The Authority shall manage the qualification system of the contracting authorities and the central purchasing bodies.
5. In the course of carrying out its activities, the Authority may carry out inspections, even upon a justified request of anyone interested in it, possibly relying on the cooperation of other state organs and the auxiliary body of the “Guardia di Finanza”, which carries out the verifications and inquiries, required by acting with the investigative powers assigned to it, for the purposes of assessments relating to value added tax and income tax. “Guardia di Finanza” = Finance Guard Corps
6. In case it ascertains the existence of irregularities, the Authority shall transmit the acts and its findings to the controlling bodies and, if the irregularities are of a criminal nature, to the competent Prosecutor office. In case the execution of public contracts is prejudicial to the public treasury, the acts and the findings are also sent to the interested parties and to the General Prosecutor of the Court of Auditors.
7. The Authority cooperates with the Italian Competition Authority on the recognition of best business conduct for the purpose of attributing the "Rating of legality" of the companies (referred to in Article 5-ter of the Decree-Law January 24, 2012, no. 1, converted, with modifications, by Law 24 March 2012, no. 27). The rating of legality also contributes to the determination of the firm's rating as referred to in Article 83, paragraph 10. (correction with effect from 15 July 2016)
8. For the purposes referred to in paragraph 2, the Authority manages the National Database on Public Contracts, in addition to the information acquired through its computerized systems, all the information contained in the existing databases, including at territorial level, in order to ensure unified accessibility, transparency, publicity and traceability of the tendering procedures and their preceding and succeeding stages. By its own decision, the Authority shall determine the modalities and times within which the holders of such databases shall, after stipulating interoperability protocols, guarantee the confluence of the data in the single accredited Database, which the Authority holds exclusive ownership. For public works, the Authority, the Ministry of the Economy and Finance, the Ministry of Infrastructure and Transport, the Presidency of the Council of Ministers and the Regions and Autonomous Provinces as computer system operators, referred to in paragraph 4 of the Article 29, shall agree on the procedures for the collection and exchange of information in the national database of public contracts, of the database referred to in Article 13 of Law 31 December 2009, no. 196, of the database referred to in Article 1, paragraph 5, of Law no. 144 and of the database referred to in Article 36 of Decree Law 24 June 2014, no. 90, converted, with modifications, by law 11 August 2014, n. 114, in order to ensure (pursuant to Legislative Decree no. 229 of Legislative Decree 14 March 2013, no. 33 and this Code), the respect of the principle of exclusivity of the transmission of information and the reduction of administrative costs for the persons referred to in Article 1 1), the effective monitoring of programming to the execution of works and the traceability of related financial flows or the fulfillment of obligations in terms of preventive transparency. Without prejudice to the autonomy of the national economic operator database referred to in Article 81, the Authority and the Ministry of Infrastructure and Transport agree on the arrangements for exchanging information to ensure the function of preventing corruption and protecting legality, while at the same time avoiding overlapping of competences and optimizing the use of data in the interest of their use by economic operators and procuring stations. (provision amended by Legislative Decree 56/2017 in force from 20-5-2017)
9. For the management of the database referred to in paragraph 8, the Authority shall use the Observatory of Public Works, Services and Supplies Contracts, composed of a Central and Regional Sections, based in each Region and autonomous Province. The Observatory operates through computerized procedures, based on specific protocols, also through links to the relevant systems in use at the regional sections and other public administrations and other parties operating in the public contracts sector. The Authority shall establish the modus operandi of the Observatory as well as the mandatory information, terms and forms of communication that the contracting stations and entities are bound to transmit to the Observatory. With regard to a person who omits, without justified reasons, to provide required information or provides untruthful information, the Authority may impose the pecuniary administrative sanction referred to in paragraph 13. The Central Section of the Observatory uses the regional sections competent for the territory for the acquisition of the necessary information as to carry out institutional tasks, on the basis of specific agreements with the regions. The Central Section of the Observatory shall monitor the application of the minimum environmental criteria referred to in the decree as to in Article 34, paragraph 1, and the achievement of the objectives set out in the Public Consumption Sustainability Action Plan. (amended by Legislative Decree 56/2017 in force from 20-5-2017)
10. The Authority shall operate the Computer Repository of public works, services and supplies, established at the Observatory, containing all the news, information and data relating to the economic operators with reference to the registrations provided for in Article 80. The Authority shall establish the additional information that must be in the records considered to be useful for the purposes of its holding, the verification of the serious professional misconduct referred to in Article 80 5) c), of the attribution of the company rating referred to in Article 83, paragraph 10, or the achievement of the qualification certificate referred to in Article 84. The Authority shall also ensure that the case file is linked to the database referred to in Article 81. (amended by Legislative Decree 56/2017 effective from 20-5-2017)
11. The Arbitration Chamber for Public works, services and supplies contracts (referred to in Article 210) operates within the Authority.
12. It is confirmed what established at Article 1, paragraph 67, Law no. 266.
13. In compliance with the principles set forth in Law No 689 of 24 November 1981, the Authority has the power to impose pecuniary administrative penalties on individuals who refuse or omit, without justification, to provide information or disclose documents requested by the same Authority and with economic operators who do not comply with the request of the tendering entity or the awarding entity to prove the existence of criteria as to participate in the awarding, within the minimum limit of Euro 250 and the maximum limit of Euro 25,000 . With regard to subjects who, when requesting information or documents from the Authority, provide information or exhibit non-truthful documents and to economic operators who provide the contracting stations or the awarding entities or certification bodies, unreliable data or documents about the possession of qualification requirements, except any additional penal sanction, the Authority has the power to impose pecuniary administrative penalties within the minimum limit of 500 euros and the maximum limit of 50,000 euros. By its own acts, the Authority shall regulate the sanctioning proceedings falling within its competence. (correct disposition with incorrect correction of 15-07-2016; provision amended by Legislative Decree 56/2017 in force from 20-5-2017)
14. The sums resulting from the payment of the sanctions referred to in Article 211 shall be paid at the treasure of the State, for the subsequent reallocation to a special fund to be set up by the Ministry of Infrastructure and Transport to be allocated, with the decree of the same Minister, to the awarding of the meritorious procuring stations, according to the criteria identified by ANAC in accordance with Article 38. The Minister of Economy and Finance is authorized to make the necessary budgetary changes with his own decrees.
15. The Authority shall maintain and update the mandatory National Register of the members of the Adjudication commissions referred to in Article 78, as well as the list of procuring stations operating through direct awards towards their own companies in accordance with Article 192.
16. The list of procurement aggregator bodies shall be set up at the Authority within the Single Registry of Contracting Authorities.
17. In order to ensure immediate and specific consultation of the ANAC's flexible regulation instruments, the ANAC shall publish those measures in such a way as to make fully accessible the rules applicable to contracting stations and economic operators.
17-bis. ANAC indicates the date of passing into force of the flexible regulation instruments referred to in paragraph 2 and to the other acts provided for in this Code, which normally coincides with the fifteenth day following their publication in the Official Journal of the Republic of Italy and, in cases of particular urgency, it may not be before the day following their publication in the Official Journal of the Italian Republic. The same acts shall apply to procedures and contracts for which the tenders or notices, indicating the procedure for the choice of the contractor, shall be published after the date of effectiveness indicated by the ANAC, as the previous sentence indicates; in the case of contracts without the publication of tenders or notices, the acts shall apply to procedures and contracts in respect of which, at the date of effectiveness, no invitations to tender have yet been sent. (amended by Legislative Decree 56/2017 in force from 20-5-2017)