Abstrakt

Background notes It was already clear in the late 1980s that the public procurement sector in Italy, particularly large-scale public building contracts, was fertile ground for the development of corruption. Following numerous judicial investigations and the emergence of corruption scandals having strong media impact, lawmakers were forced to intervene and set up an oversight and safeguard Authority, as laid down in Italian Law 109/1994 (the so-called Merloni law). This law aimed to create a system of safeguards that would ensure the application of criteria of impartiality, efficiency and effectiveness in this sensitive sector by following opportune and proper procedures and complying with European regulations, which were already working towards the principle of free competition among those operating in the field of public works. The regulations introduced were characterised by specifically defined criteria and binding procedures restricting any room for administrative discretion, thus reducing the risk of corruption. The duties of the Authority for the oversight of public works, provided for in art. 4, par. 1 and 4 of Italian Law 109/1994, included the monitoring of compliance with the statutory and regulatory framework in order to bring to light any failings or irregularities in the procedures for the awarding of contracts. The safeguarding role of the Authority included the power to notify irregularities or breaches of public procurement regulations to the relevant regulatory body, or to the relevant judicial bodies in the event of possible criminal offences. Moreover, the Authority was given a role in supporting the legislative activities of the Italian Parliament and Government on these matters, in support of the strategic importance of this sector and for the purposes of resolving critical issues and bringing to notice the serious phenomena of non-compliance with or biased enforcement of regulations.3 In this early phase, however, there was an obvious lack of provisions capable of effectively implementing the principals and intentions expressed by lawmakers, since the Authority had no coercive or restraining powers, while the penalties made available in art. 4, par. 7 and 17, of Italian Law 109/1994 proved to be inadequate and incapable of positively and significantly influencing the regularisation of the public procurement contract system. The first significant reform of the Authority’s role was included in the Public Contract Code, which was passed into law through Italian Legislative Decree 163/2006 in implementation of European Community Directives 2004/17/EC and 2004/18/EC. In this circumstance lawmakers laid down, in art. 6, par. 1, that the Authority should be known as the Autorità per la vigilanza sui contratti pubblici di lavori, servizi e forniture or AVCP (Authority for the oversight of public works, service and supply contracts), thus widening its scope of responsibility to include all public procurement contracts regarding works, services and supplies. Taking into consideration European law, the “new” Authority saw its oversight role confirmed, with particular reference to enforcement of the principle of free competition. In any case, the functions were not significantly modified and, in particular, powers of inspection and imposing penalties remained the same, to be exercised largely in cases...