Article 98. Serious professional misconduct.

1. Serious professional misconduct is only relevant if committed by the offering economic operator, except as provided for in paragraph 3, letters g) and h). 2. The exclusion of an economic operator pursuant to article 95, paragraph 1 , letter e) is arranged and communicated by the contracting authority when all the following conditions are met: a) sufficient elements to integrate the serious professional misconduct; b) suitability of the serious professional misconduct to affect the reliability and integrity of the operator; c) adequate means of proof referred to in paragraph 6. 3. Professional misconduct can be inferred from the occurrence of at least one of the following elements: a) executive sanction imposed by the Competition and Market Authority or by another authority of sector, relevant in relation to the specific object of the contract; b) conduct of the economic operator who has attempted to unduly influence the decision-making process of the contracting authority or to obtain confidential information to his own advantage or who has provided, even negligently , false or misleading information likely to influence decisions on exclusion, selection or award; c) conduct of the economic operator which has demonstrated significant or persistent deficiencies in the execution of a previous procurement or concession contract which have caused the termination for non-compliance or the sentence to compensation for damages or other comparable sanctions, deriving from particularly serious non-compliances or the repetition of which is indicative of a persistent professional deficiency; d) conduct of the economic operator who has committed serious non-compliance towards of one or more subcontractors; e) conduct of the economic operator who has violated the ban on fiduciary registration referred to in article 17 of law 19 March 1990, n. 55, where the violation has not been removed; f) failure to report to the judicial authority by the economic operator who is the victim of the crimes provided for and punished by articles 317 and 629 of the penal code aggravated pursuant to article 416-bis. 1 of the same code unless the cases provided for in article 4, first paragraph, of law 24 November 1981, n. 689. This circumstance must emerge from the evidence underlying the request for indictment formulated against the accused for the crimes referred to in the first period in the year preceding the publication of the notice and must be communicated, together with the personal details of the person who omitted the aforementioned report, by the public prosecutor proceeding to the ANAC, which takes care of its publication; g) contested commission by the economic operator, or by the subjects referred to in paragraph 3 of article 94 of some of the crimes committed or attempted as per paragraph 1 of the same article 94; h) contested or confirmed commission, by the economic operator or the subjects referred to in paragraph 3 of article 94, of any of the following crimes committed: 1) abusive exercise of a profession, pursuant to article 348 of the penal code; 2) simple bankruptcy, fraudulent bankruptcy, failure to declare assets to be included in the bankruptcy inventory or abusive use of credit, referred to in articles 216, 217, 218 and 220 of the royal decree of 16 March 1942, n. 267; 3) tax crimes pursuant to legislative decree 10 March 2000, n. 74, the corporate crimes referred to in articles 2621 et seq. of the civil code or the crimes against industry and commerce referred to in articles 513 to 517 of the penal code; 4) the urban planning crimes referred to in article 44, paragraph 1, letters b) and c), of the consolidated text of the legislative and regulatory provisions on construction, referred to in the decree of the President of the Republic of 6 June 2001, n. 380, with reference to assignments relating to architectural and engineering works or services; 5) the crimes provided for by the legislative decree of 8 June 2001, n. 231. 4. The severity assessment takes into account the legal benefit and the extent of the injury inflicted by the conduct integrating one of the elements referred to in paragraph 3 and the time that has elapsed since the violation, also in relation to changes that have occurred in the meantime in the organization of the company. 5. The omitted or untruthful declarations made in the same tender and different from those referred to in letter b) of paragraph 3 can be used to support the assessment of severity referring to the elements referred to in paragraph 3. 6 In relation to paragraph 3, the following constitute adequate means of proof: ), the presence of serious, precise and concordant evidence which makes the occurrence of the exclusionary situation evident; c) as to letter c), the termination due to non-compliance or the sentence to compensation for damages or other comparable consequences; d ) as to letter d), the issuing of judicial measures, even if not definitive; e) as to letter e), the definitive assessment of the violation; f) as to letter f), the elements indicated therein; g) as in letter g), the acts referred to in article 407-bis, paragraph 1, of the criminal procedure code, the decree ordering the trial pursuant to article 429 of the criminal procedure code, or any real or personal precautionary measures issued by the criminal judge, the non-final conviction sentence, the non-irrevocable criminal conviction decree, the non-irrevocable sentence of application of the sentence upon request pursuant to article 444 of the criminal procedure code; h) as to letter h) , the definitive sentence, the irrevocable criminal decree, the non-final sentence, the real or personal precautionary measures, where issued by the criminal judge; 7. The contracting authority evaluates the sanctioning and jurisdictional measures referred to in paragraph 6, giving reasons on the deemed suitability of the same to affect the reliability and integrity of the offerer; any challenge to the same is considered in the context of the assessment aimed at verifying the existence of the excluding cause. 8. The exclusion provision must be motivated in relation to all three conditions referred to in paragraph 2. EFFECTIVE FROM : July 1, 2023