Art. 80. Exclusion grounds

1. It is considered to be a reason for the exclusion of an economic operator from participation in a contract or concession award procedure, the final judgment or an irrevocable decree of conviction or a judgment enforcing the penalty by request pursuant to Article 444 of the Criminal Procedure Code, also referred to a subcontractor in cases pursuant to Article 1056) for one of the following offences:

a) crimes, committed or attempted, pursuant to Articles 416, 416-bis of the Criminal Code as well as crimes committed making use of conditions provided for in the aforementioned Article 416-bis or for one of the activities in that same Article, as well as for the crimes, committed or attempted, provided for in Article 74 of the decree of the President of the Republic n. 309 of 9 October 1990, in Article 291-quater of the decree of the President of the Republic n.43 of 23 January 1973, and Article 260 of legislative decree n.152 of 3 April 2006, as far as they can be attributed to the participation to a criminal organization, as defined in Article 2 of the framework decision 2008/841/JIA of the Council;

b) crimes, committed or attempted, according to Articles 317, 318, 319, 319-ter, 319-quater, 320, 321, 322, 322-bis, 346-bis, 353, 353-bis, 354, 355 and 356 of the Criminal Code as well as Article 2635 of the Civil Code;

b-bis) false social communications pursuant to Articles 2621 and 2622 of the Civil Code; letter introduced by legislative decree no. 56/2017 in force from 20-5-2017

c) fraud within the meaning of Article 1 of the Convention on the protection of the European Communities’ financial interests;

d) crimes, committed or attempted, for purposes of terrorism, also international terrorism, and of subversion of the constitutional order; terrorist crimes or crimes connected to terrorist activities;

e) crimes pursuant to Articles 648-bis, 648-ter.1 of the Criminal Code, money laundering of proceeds of criminal activities or financing of terrorism, as defined in Article 1 of legislative decree n. 109 of 22 June 2007, and subsequent modifications;

f) employment of child labor and other forms of trafficking in human beings as defined by legislative decree n. 24 of 4 March 2014;

2. It is also a reason for exclusion of the existence, with reference to the persons indicated in paragraph 3, of causes for forfeiture, suspension or prohibition provided for in Article 67 of Legislative Decree 6 September 2011, n. 159 o of an attempt to infiltrate the mafia referred to in Article 84, paragraph 4, of the same decree. The provisions of articles 88, paragraph 4-bis, and 92, paragraphs 2 and 3 of legislative decree 6 September 2011, n. 159, with reference respectively to anti-mafia communications and anti-mafia information.

3. The exclusions referred to in paragraphs 1 and 2 shall apply if the judgment or the decree or the interdictive measures have been pronounced against: the owner or technical director, in case of an individual undertaking; the partner or technical director in case of a general partnership; the general partners or the technical director, in case of a limited partnership; the members of the board of directors who have been assigned legal representation, including agents and general procurers, the members of the organs with powers of direction or supervision or the subjects vested with power of representation, of direction or control, the technical director or unique partner natural person, or the majority partner in case of a society with less of four partners, if it is another kind of society or consortium. In any case the exclusion and ban shall also operate for the subjects ceased from the office in the year before the date of publication of the contract notice, if the undertaking does not demonstrate that there has been a complete and effective dissociation from the criminally sanctioned conduct; the exclusion shall not be imposed and the ban shall not apply if the crime has been decriminalized or rehabilitation has intervened or the crime has been declared extinguished after the conviction or in case of revocation of the same sentence.

4. An economic operator shall be excluded from the participation in an award procedure if it has committed serious violations, definitely sanctioned, with respect to obligations relating to the payment of taxes or social and security contributions according to Italian legislation or the legislation of the State where it is incorporated. Serious violations are those violations implying an omitted payment of taxes for a sum higher than what provided for in Article 48-bis, paragraphs 1 and 2-bis, of the decree of the President of the Republic n. 602 of 29 September 1973. Definitely sanctioned violations are those contained in judgments or administrative acts that are not challengeable anymore. Serious violations in the fields of social and security contributions are those preventing from issuing the Single Document of Contributive Regularity (SDCR), referred to in Article 8 of the decree of the Minister of Work and Social Policy of 30 January 2015 published in the Official Journal n.125 of 1 June 2015, or of the certifications issued by the relevant social security entities which do not adhere to the system of the single security board. This paragraph shall no longer apply when the economic operator has fulfilled its obligations by paying or entering into a binding arrangement with a view to paying the taxes or social security contributions due, including any possible, interest accrued or fines, as long as the payment or binding agreement have been formalized before the deadline for the presentation of tenders.

5. Contracting authorities or contracting entities shall exclude from participation in an award procedure an economic operator in one of the following situations, even referred to a subcontractor in cases under Article 1056) when:

a) the contracting authority or entity can demonstrate by any appropriate means the presence of serious violations duly ascertained with reference to the norms in the field of health and safety on workplaces, as well as the obligations contained in Article 303) of this Code;

b) the economic operator is bankrupt or is the subject of winding-up proceedings or preventive agreement except cases of agreement with business continuity, or against which there is a proceeding for the declaration of one of these situations, without prejudice for what provided for in Article 110;

c) the contracting authority or entity demonstrate with appropriate means that the economic operator has been liable of serious professional misconducts, to the extent that they make its integrity or reliability dubious. letter amended by Law Decree no. 135/2018 in force from 16-12-2018

c-bis) the economic operator has undertaken to unduly influence the decisional process of the contracting station or to obtain confidential information for self-advantage; to provide, also for negligence, false or misleading information capable of influencing the decisions on exclusion, the selection or the award, or to omit information due for correctly carrying out the selection procedure; letter introduced by Law Decree no. 135/2018 in force from 16-12-2018

c-ter) the economic operator has shown significant or persistent deficiencies in the performance of a substantive requirement under a prior public contract or concession, that have caused its early resolution, or they have given rise to an order topay damages other comparable sanctions; on these circumstances the contracting authority also motivates with reference to the time elapsed from the violation and to the gravity of the same; letter introduced by Law Decree no. 135/2018 in force from 16-12-2018

d) the participation of an economic operator determines a situation of conflict of interest pursuant to Article 422), not otherwise solvable;

e) a distortion of competition deriving from the prior involvement of the economic operators in the preparation of the procurement procedure, as referred to in Article 67, cannot be remedied by other, less intrusive measures

f-bis) the economic operator presenting in the ongoing tender procedure or in the award of subcontracts untrue documents or declarations; letter introduced by legislative decree 56/2017 in force from 20-5-2017

f-ter) the economic operator enrolled in the computer records kept by the ANAC observatory for having presented false declarations or false documents in the tender procedures and in the award of subcontracts. The reason for exclusion lasts until as long as the enrolment in the computer records operates; letter introduced by legislative decree 56/2017 in force from 20-5-2017

g) the economic operator enrolled in the computer records kept by the ANAC observatory for having presented false declarations or false documents in order to obtain the certification of qualification, for the period in which the enrolment operates;

h) the economic operator has violated the ban on the fiduciary registration referred to in Article 17 of the Law of 19 March 1990, n. 55. The exclusion lasts one year from the definitive ascertainment of the violation and must be ordered if the violation has not been removed;

i) the economic operator does not present the certification referred to in Article 17 of the Law of 12 March 1999, n. 68, or not to certify the existence of the same requirement;

l) the economic operator who, despite having been the victim of the predicted offenses and punished by articles 317 and 629 of the penal code aggravated under Article 7 of the Decree-Law of 13 May 1991, n. 152, converted, with modifications, from the law 12 July 1991, n. 203, does not appear to have reported the facts to the judicial authority, except that the cases provided for by the first paragraph of Article 4 of the Law of 24 November 1981, n. 689. The circumstance must emerge from the indications based on the request for reference made to the defendant in the year preceding the publication of the announcement and must be communicated, together with the generality of the person who has omitted the aforementioned denunciation, from the procurator of the Republic proceeding to the ANAC, which takes care of the publication of the communication on the site of the Observatory;

m) the economic operator is in relation to another participant in the same awarding procedure, in a control situation referred to in Article 2359 of the Italian Civil Code or in any report, even de facto, if the control situation or report implies that tenders are attributable to a single decision-making center.

6. Contracting authorities or contracting entities shall at any time during the procedure exclude an economic operator where it turns out that the economic operator is, in view of acts committed or omitted either before or during the procedure, in one of the situations referred to in paragraphs 1, 2, 4 and 5.

7. An economic operator, or a subcontractor, who is in one of the situations referred to in paragraph 1, limited to the cases in which the final sentence imposed a sentence not exceeding 18 months or recognized the mitigating factor of the collaboration as defined for the individual cases of crime, or in paragraph 5, is allowed to prove compensation or have committed to compensate any damage caused by the crime or the offense and to have taken concrete measures of a technical, organizational and staff nature suitable for preventing further crimes or offenses.

8. If the contracting authority considers that the measures referred to in paragraph 7 are sufficient, the economic operator is not excluded from the procurement procedure; vice versa of the exclusion, motivated communication is given to the economic operator.

9. An economic operator which has been excluded by final judgment from participating in procurement award procedures shall not be entitled to make use of the possibility provided for under paragraphs 7 and 8 during the period of exclusion resulting from that judgment.

10. If the final judgment does not set out the duration of the accessory penalty not to bargain with the public authority or rehabilitation has not occurred, that period shall be equal to five years, except where the main penalty is of a lower duration, and in this case it shall equal the duration of the main penalty and three years, running from the date of the final determination, in cases referred to in paragraphs 4 and 5 where the final judgment has not occurred. paragraph modified by legislative decree no. 56/2017 in force from 20-5-2017

11. The causes of exclusion provided for in this Article shall not apply to the undertakings or societies seized in confiscation pursuant to Article 12-sexies of the decree-law n. 306 of 8 June 1992, converted with modifications, by law n. 356 of 7 August 1992 or to Articles 20 and 24 of legislative decree n. 159 of 6 September 2011, and entrusted to a guardian or judicial or financial administrator, limited to those referred to the period preceding this entrusting.

12. In case of presentation of a false declaration or a false documentation, in the procurement procedures and in the subcontracting assignments,. The contracting station gives notice to the Authority which, where it believes that they have been rendered with fraud or gross negligence considering the relevance or gravity of the facts object of the false declaration or presentation of false documentation, orders the enrolment in the electronic record with a view to exclusion from the procurement procedures and the subcontracting assignments pursuant to paragraph 1 up to two years, after which the enrolment is cancelled and however ceases to produce effects.

13. ANAC may, be means of guidelines to be adopted within 90 days from the entry into force of this Code, precise, in order to grant an homogeneous practice by contracting authorities or contracting entities, to consider as adequate means of proof in order to demonstrate the circumstances of exclusion referred to in paragraph 5, letter c), or as shortcomings in the execution of a previous procurement contract are significant within the meaning of that same paragraph 5, letter c). see Guideline ANAC no. 6: Resolution no. 1008 of October 11, 2017, published in the Italian Official Gazette, General Series no. 260 of November 7, 2017 concerning: Indication of means of proof and deficiencies in the performance of a previous contract that can be considered significant for the demonstration of the exclusion circumstances pursuant to article 80, par. 5, let. c)

14. The entities for whom the grounds of exclusion provided for in this Article apply shall not be entrusted with subcontracts and shall not conclude the relevant contracts.
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