Contracts are awarded to economic operators that satisfy the criteria of (a) suitability to pursue the professional activity; (b) economic and financial standing; and (c) technical and professional ability. Such criteria are identified on a case-by-case basis in light of the subject-matter of the contract.

With regard to (a) suitability to pursue the professional activity, contracting authorities may require economic operators to be enrolled in a professional or trade register (if any).

With regard to (b) economic and financial standing, contracting authorities may impose requirements ensuring that economic operators possess the necessary economic and financial capacity to perform the contract, including a certain minimum yearly turnover, information on annual accounts showing the ratios, for instance, between assets and liabilities, and an appropriate level of professional risk indemnity insurance.

With regard to (c) technical and professional ability, contracting authorities may impose requirements ensuring that economic operators possess the necessary human and technical resources and experience to perform the contract to an appropriate quality standard.

Prequalification is an option according to section 90 of Codice dei Contratti Pubblici for the procurement of supplies, services and works. In order to prequalify, the applicant has to provide proof that he possesses general technical knowledge, efficiency and reliability for a certain type of contract/performance through enrolment at official registers and/or possession of adequate certification released by accredited bodies.

If the provided information withstands the authority's examination, a prequalification certificate containing a certificate number is issued to the company. The economic operator is then listed in the prequalification database of the competent authority and can be tracked via the certificate number. The company can apply for a public procurement by simply providing the certificate number to the contracting authority, unless a request of a new and specific qualification is advances by the same contracting authority (even upon request of a competitor).

Also, a national database (Banca dati nazionale degli operatori economici) should be formed with reference to the capabilities of the bidders and to prove that general selection criteria are satisfied.

Bidders are enlisted in the Casellario of ANAC if they submitted false information or documentation within a tender procedure. Contracting authorities are required to report the event to ANAC, which assesses whether the negligent or fraudulent conduct deserves the enlisting in the Casellario and the consequent exclusion from tender for a period until two years.

Also, the abovementioned Banca dati nazionale degli operatori economici should include reference to the possession (or the lack) of the general selection criteria.

Operators may take self-cleaning measures to be admitted notwithstanding the presence of any exclusion grounds. In this perspective, evidence has to be provided that:

• the bidder has compensated all damages caused by the law infringement or has engaged itself to do so; and
• the bidder has taken adequate technical, organisational and personnel-wise measures to prevent future law infringements; and
• in case of decree of imprisonment, the conviction does not exceed 18 months or has considered the mitigating circumstance of collaboration to solve the committed offence.

In order to prevent conflicts of interest, a company that was involved in the set-up of a procurement procedure (i.e. drafting of or advising on the specifications within the preliminary market consultations under section 66 of Codice dei Contratti Pubblici and article 40 of Directive 2014/24/EU) can be excluded from said procedure pursuant to paragraph 5 let. e of section 80 Codice dei Contratti Pubblici if the involvement of the company in the set-up has led to a competitive distortion that cannot be remediated by other, less incisive measures (e.g. longer deadlines to submit a bid).

As a general rule, bidders may combine to submit a bid and form a bidder consortium. Under national procurement law a bidder consortium is basically treated as one individual bidder.

Under Codice dei Contratti Pubblici, economic operators may form an ordinary consortium or even a temporary consortium (raggruppamento temporaneo di imprese - RTI).

Economic operators form an RTI only and precisely to participate in a tender procedure. Indeed, the RTI is mainly intended to allow the joint participation of operators which would not be able to participated individually. Unlike a consortium, an RTI does not create any structure separated from the companies involved, being only a contractual agreement aimed to carry on public contracts jointly. The members have to appoint, through an (almost) irrevocable mandate, a leader (impresa mandataria) which will act as representative of the RTI vis-à-vis the contracting authority. As general rule, RTI members are jointly and severally liable towards the contracting authority, provided that the internal allocation of liabilities is possible and effective inter partes only.

Specific provisions apply as to the possession of the requirements either by the consortium/RTI or each member.

The participation in a tender procedure through a consortium/RTI prevents from participating individually or as a member of a further consortium/RTI.

After the award of the contract, the contracting authority may require that the consortium/RTI assumes a specific legal form if this is required for the proper execution of the contract.

In principle, companies which are not competitors on the same market, or would not be qualified to participate in the relevant procedure on an individual-basis, may form a bidder consortium/RTI without raising the general suspicion of a competitive distortion. On the contrary, bidder consortium/RTI may be excluded from the tender procedure if the formation of the bidder consortium/RTI is considered anti-competitive and thus could potentially distort free competition. Such an exclusion should be the result of a specific assessment.

As general rule, consortium/RTI composition cannot be modified. Exceptions are admitted in case of bankruptcy or other insolvency or winding-up proceedings, and in case of withdrawal of a member provided that such a withdrawal is due to organizational needs and is not intended to evade the lack of any requirement.

Under paragraph 5, let. m of section 80 of Codice dei Contratti Pubblici, the contracting authority excludes the bidder that is, with respect to another bidder within the same tender procedure, in a situation of control, or in another relationship, also de facto, if the situation of control or the relationship entails that the offers are referable to a single decision-making centre.

Companies established under the law of an EU Member State participate in national procurement procedures at the same conditions of the Italian operators, and in accordance with mutual recognition and non-discrimination principles.

Non-EU companies are entitled to participate in national procurement procedures and receive a treatment no less favourably than the treatment accorded under the Codice dei Contratti Pubblici if they are established in any state part of GPA and other binding international agreement.

Of course, all bidders are requested to produce the documentation in the language indicated in the tender notice, and consequently translation into Italian of certain documents (or preparation of affidavits in Italian, or bilingual version) is generally necessary.