The "soccorso istruttorio" in the Italian legislation is essentially a special procedure for remedying to formal deficiencies in tender bids. Through this process, the contracting authority can ask to the participants to the tenders additional information in order to perfect their documentation when affected by formal fallacies. The Council of State, with Decision No. 7870/2023has took its first stance on this legal instrument after its reform by the New Code of Public Contracts (Legislative Decree no. 36/2023). Even if the tender at stake was awarded under the rules of the previous Code of Public Contracts, the Council of State defined the four different types of "soccorso istruttorio" as disciplined by the New Code: (a) first, the "integrative" one, which aims at completing missing elements from the documentations; (b) then, the "healing" one, in case of irregularities in the documentation that have to be corrected; (c) third, the "soccorso istruttorio" with "strict interpretation", that is aimed at correcting any irregularity in the economical and technical offer, without giving the option to alter their fundamental content; (d) and last, the "corrective" one, which is the true new type of "soccorso istruttorio", and therefore cannot be applied to previous procurements retroactively. This ultimate type consists in the freedom of the bidders in the tender to actively correct their documentation, without previous request by the contracting authority, until the last day for the opening to offers.
Originally published by August - September, 2023
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