Art. 38. Qualification of contracting authorities or entities and central purchasing bodies

1. Without prejudice to what provided for in Article 37 regarding aggregation and centralization of contracts, at ANAC, which shall ensure its publicity, shall be established a specific list of qualified contracting authorities or entities including central purchasing bodies. The qualification shall be obtained with reference to the ambits of activity, to territorial basins, to the typology and complexity of the contract and ranges of amounts. The Minister of Infrastructures and Transports, including the interregional superintendencies for public works, CONSIP S.p.A., INVITALIA - National Agency for the Attraction of Investments and Enterprise Development S.p.A, as well as the regional aggregating subjects referred to in Article 9 of legislative decree n. 66 of 24 April 2014, converted with modifications by law n. 89 of 23 June 2014, shall be included in the list by right.

2. By means of a decree of the President of the Council of Ministers, to be adopted, upon proposal of the Minister of Infrastructures and Transports and of the Minister of Economics and Finances, in agreement with the Minister for the Simplification of Public Administration, within 90 days from the entry into force of this Code, having heard ANAC and the Unified Conference, shall be defined the technical and organizational requirements for the enrolment in the list referred to in paragraph 1, in application of the criteria of quality, efficiency and professionalism, including, for central purchasing bodies, the character of stability of activities and the relevant territorial ambit. The decree shall also establish the modalities of implementation of the system of qualification attestations and possible update and withdrawal, as well as the date from which the new system of qualification shall enter into force.

3. Qualification has as subject-matter the set of activities characterizing the process of acquisition of a good, service or work in relation to the following ambits:

a) planning and design capacity;

b) award capacity;

c) capacity of verification on the execution and control of the entire procedure, including testing and installation.

4. The requirements in paragraph 3 shall be identified on the basis of the following parameters:

a) basic requirements, such as:

1) stable organizational structures intended for the ambits referred to in paragraph 3;

2) presence in the organizational structure of employees having the specific competences in relation to the activities in paragraph 3;

3) system of training and upgrading of the staff;

4) number of tenders carried out in the previous five years with indication of typology, amount and complexity, number of approved variants, verification on the deviation between the tendered amounts and the final balance of expenses incurred, respect of the timelines for execution of the entrusting, award and testing procedures;

5) respect of the time limits provided for the payment of undertakings and suppliers as established by the existing legislation or the respect of the payment of undertakings and suppliers, according to the indexes of timeliness indicated in the decree adopted for the implementation of Article 33 of legislative decree n. 33 of 14 March 2013;

5-bis) fulfilment of the obligations to communicate the data on public work, service and supply contracts in the archives held or managed by the Authority, according to Article 213, paragraph 9;

5-ter) for works, fulfilment of what provided for in Articles 1 and 2 of legislative decree n. 229 of 29 December 2011, on monitoring procedures of the state of the implementation of public works, verification of the use of funds in the expected timeframes and establishment of the Work funds, and in Article 29, paragraph 3;

b) rewarding requirements, such as:

1) positive evaluation by ANAC with reference to the implementation of measures for the prevention of corruption risks and promotion of legality;

2) presence of quality management systems in conformity with the standard UNI EN ISO 9001 for offices and competition procedures, certified by accredited bodies for that purpose within the meaning of European Parliament and Council regulation EC 765/2008;

3) availability of digital technologies for the management of competition procedures;

4) level of defeat in disputes;

5) implementation of the criteria of environmental and social sustainability in the planning and award activities.

4-bis. Contracting authorities whose organization provides for articulation, also territorial, shall verify the subsistence of the requirements referred to in paragraph 4 upon those same structures and notify to ANAC for qualification.

5. Qualification obtained shall last for 5 years and may be reviewed after verification, also on the base of samples, by ANAC or upon request by the contracting authority or entity.

6. ANAC shall establish the implementing modalities for the system of qualification, on the basis of what provided for in paragraphs 1 to 5, and shall allocate to contracting authorities or entities and to central purchasing bodies, also for ancillary activities, an adequate time limit in order to obtain the necessary requirements for qualification. It shall also establish different modalities which take into account the peculiarities of private subjects requesting qualification.

7. By means of the provision referred to in paragraph 6, ANAC shall also establish cases in which qualification with reserve may be decided, in order to allow the contracting authority or entity and the central purchasing body, also for ancillary activities, to acquire the required technical and organizational capacity. The qualification with reserve shall have a maximum duration not exceeding the time limit established in order to obtain the requirements necessary for the qualification.

8. Since the date of entry into force of the new system of qualification for contracting authorities or entities, ANAC shall not issue the Identification Tender Code CIG) to contracting authorities or entities which proceed to the purchase of goods, services or works not falling within the obtained qualification. Until that date, Article 216, paragraph 10 shall apply.

9. A percentage of the resources of the fund referred to in Article 213, paragraph 14, allocated to the contracting authority or entity by means of the decree referred to in that paragraph shall be attributed by the administration of which the rewarded contracting authority or entity forms a part to the fund for the remuneration of the results of managers and employees working in the competent organizational units for the procedures in this Code. The positive evaluation of the contracting authority or entity shall be notified by ANAC to the administration of which they form a part in a way that it shall take into account for the evaluation of the organizational and operational performances of the concerned employees.

10. Contracting entities which are not contracting authorities and other contracting subjects referred to in Article 3, paragraph 1, letter g) shall be excluded from the application of this Article.
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