Abstrakt

Introduction  The many problems which arise in the attempt to identify general requirements for participation in public tenders have long concerned both doctrine and the law.  This paper is not an exhaustive study but offers some insights and perspectives on the question, given that several efforts made by legislature, from the nineties to the present, have not resolved the critical issues related to the relationship between rule configuration and risks of corruption.  Sectoral legislation regarding general requirements for participants in a tender indicates a general to the permanence of corruptive phenomena, as well as other criminal offenses, transposed from EU legislation.  In particular, the Code precludes, without discretion, participation in tenders in the event of a pending proceeding for the application of a measure of prevention, criminal conviction for offenses such as corruption, criminal association, fraud, money laundering, serious infringements of labour, social security, welfare and tax laws. Therefore, the rules on general requirements select those who can negotiate with the public administration, regulating traders’ access and the permanence in the market. The provision of peremptory causes of exclusion  The aim is to prevent an aggravation of the proceeding with formal charges that do not respond to a specific interest in public administration, establishing the exclusion only for breaches of legislation, absolute uncertainty about the content or source of the offer, lack of subscription or other essential elements and non-integrity of the sealed envelope. In this way, the legitimacy of the exclusion is no longer anchored to the express prediction of the notice or a later verification of the utility and reasonableness of the clause infringed, but to a preventive and general judgment made ​​by the prevision of precise rules by the legislature.220  Indeed, the modification of the Code resulting from the introduction of art. 46 co.1 D.L. n.70/2011 does not eliminate or reduce the discretion of the administration in determining the requirements for participation in tendering procedures that are substantive requirements for participation and for the execution of the contract. Consequently, lack of requirements will also be equivalent to non-fulfillment of the requirements imposed by current legislation and, therefore, result in the exclusion from the tender procedure.  Therefore, under the new legislation, it may concluded that exclusion is ruled both when it is expressly provided for by provisions of the Code or the Rules,...