The new regulations on soccorso istruttorio in the Italian Public Procurement Code

Simplification is the keyword of the new Code and simplification is the keyword of the new discipline of the soccorso istruttorio procedure, provided by art. 101. In the technical report to the code, it is clarified that the reasons for the rewriting of the soccorso istruttorio procedure are to be found in the need to simplify the institution in order to avoid that the tender procedure may be conditioned by an "excessive formalism, which may prejudice the quality of the offer and the full achievement of the objective pursued by the contracting station with the tender procedure".

With a view to the simplification, acceleration and digitalization that must characterize all tender procedures, it is provided in paragraph 1 that the economic operator will not be required to submit missing documentation if the document is present in the economic operator's virtual file. Also in paragraph 1, two hypotheses are provided for in which the contracting authority starts the soccorso istruttorio procedure assigning a deadline of no less than five days and no more than ten days to allow the operator: to supplement a missing document, excluding the technical or economic offer (lett. a); to rectify any omission, inaccuracy or irregularity in the application to participate, in the DGUE and in any other document required by the contracting authority for participation, excluding the technical or economic offer (lett. b).

The provision clarifies that the non-submission of the provisional guarantee, the contract of avvalimento and the undertaking to grant a special collective mandate in the case of temporary groupings that have not yet been formed can be remedied, but with documents having a date certain prior to the deadline for the submission of tenders. In practice, only a mere oversight on the part of the economic operator (failure to submit certain existing documents) can be remedied.

Paragraph 2 provides also a form of soccorso istruttorio that involves offers. In fact, the provision stipulates that the contracting authority may always request clarifications on the contents of the technical and economic offer and on any of their annexes. The clarifications must not lead to a change in the content of the technical and economic offer.

The most important novelty is to be found in the closing paragraph of the article (paragraph 4), which provides for a possibility of posthumous correction by the operator (i.e. after the deadline of the application and before the 'opening' of the offers).

Such a correction can independently be requested by the operator concerned and may involve the technical offer or the economic offer. The correction must concern a mere clerical error by the tenderer (e.g. a discrepancy between the unit amounts and the total amount of the economic offer) in drafting the offer. The request for correction can be issued up to the day set for the opening of the envelopes containing the offers. The request for rectification must be made in the same way as for the submission of the application in a sealed envelope, with an indication on the envelope that it is a rectification, and must be opened together with the original offer.

Although the simplification effort is significant, its practical application may not be so easy and may actually be a further source of litigation before the administrative courts. The qualification of the amendable error is left to the economic operator, who will obviously be interested in downplaying the extent of the error, and the scope of the permissible corrections will have to be carefully assessed.

However, the new soccorso istruttorio rules are emblematic of all the new Code's guiding principles: trust, results, simplification, digitalization and acceleration. We hope that all players will be ready to apply it from 1 July 2023.