Art. 63. Negotiated procedure without prior publication of a contract notice

1.In the cases and circumstances laid down in the following paragraphs, contracting authorities and contracting entities may award public contracts by a negotiated procedure without prior publication of a contract notice, explaining with an adequate reason, in the first act of the procedure, of the existence of the required conditions.

2. In case of public works supplies and services contracts, the negotiated procedure without prior publication may be used:

a) where no tenders or no suitable tenders or no requests to participate or no suitable requests to participate have been submitted in response to an open procedure or a restricted procedure, provided that the initial conditions of the contract are not substantially altered and that a report is sent to the European Commission where it so requests. 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 authority’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 is to be or may be excluded pursuant to Article 80 or does not meet the selection criteria set out by the contracting authority pursuant to Article 83;

b) 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;

3) the protection of exclusive rights, including intellectual property rights;

The exceptions set out in points 2) and 3) shall only apply when there are no other economic operators or no reasonable alternative exist and the absence of competition is not the result of an artificial narrowing down of the parameters of the procurement;

c) in so far as is strictly necessary where, for reasons of extreme urgency brought about by events unforeseeable by the contracting authority, the time limits for the open procedures or restricted procedures or competitive procedures with negotiation cannot be complied with. The circumstances invoked to justify the recourse to the procedure in this Article shall not in any event be attributable to the contracting authority.

3. In case of public supplies contracts, the procedure in this Article is, furthermore, allowed in the following cases:

a) where the products involved in the contract are manufactured purely for the purpose of research, experimentation, study or development; except cases in which the production regards quantity sufficient to establish commercial viability or to recover research and development costs;

b) for additional deliveries made by the original supplier which are intended either as a partial renewal of supplies or installations or as the extension of existing supplies or installations where a change of supplier would oblige the contracting authority to acquire supplies having different technical characteristics whose use or manteinance would result in incompatibility or disproportion the duration of such contracts as well as that of recurrent contracts shall not, as a general rule, exceed three years;

c) for supplies quoted and purchased on a commodity market;

d) for the purchase of supplies or services on particularly advantageous terms, from either a supplier which is definitively winding up its business activities, or the liquidator in an insolvency procedure.

4. The procedure provided for in this Article may be also used for public service contracts, where the contract concerned follows a design contest and is to be awarded, under the applicable rules, to the winner or one of the winner or to one of the winneers of the contest. In the latter case, all winners must be invited to participate in the negotiations.

5. This procedure may be used for new works or services consisting in the repetition of similar works or services, already entrusted to the economic operator to which the same contracting authorities awarded an original contract, provided that such works or services are in conformity with a basic project for which the original contract was awarded pursuant to a procedure in accordance with Article 39, paragraph 1. The basic project shall indicate the extent of possible additional works or services and the conditions under which they will be awarded. The possibility to use the procedure provided for in this Article shall be indicated since the beginning of the competitive negotiation in the first operation and the total estimated cost for the prosecution of works or the provision of services is calculated for the determination of the total value of the contract, in order to apply the thresholds referred to in Article 35, paragraph 1. This procedure may be used only during the three years following the conclusion of the original contract.

6. Contracting authorities shall identify the economic operators to be consulted on the basis of information concerning the characteristics of economic and financial and technical and professional qualification obtained from the market, in compliance with the principles of transparency, competition, rotation, and select at least five economic operators, if there are suitable subjects in this number. The contracting authority chooses the economic operator who has offered the most advantageous tender, in accordance with Article 95, subject to verification of the possession of the requisites for participation provided for the awarding of contracts of equal amount by an open procedure, restricted or by procedure competitive.

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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