Exclusion From Italian Public Procurement

What are the grounds that lead to the exclusion of an economic operator and what is the term of exclusion?

Under Italian public procurement law, compliance with the requirements set out in the Italian Public Procurement Code (Legislative Decree No. 36/2023) is essential in order for an economic operator to participate in a public tender in Italy.
Failure to meet these requirements may lead to exclusion from Italian public procurement procedures.

Legislative Decree No. 36/2023 expressly regulates the grounds for exclusion from public tenders in Italy in five specific articles.

Article 94 provides for cases of automatic exclusion, where the tenderer has been convicted by a final judgment or an irrevocable criminal conviction decree for offenses considered particularly serious under Italian law. These include, by way of example:

• Crimes, whether completed or attempted, under Articles 416 and 416-bis of the Italian Criminal Code (including criminal association and mafia-type association), as well as offenses under Article 74 of the Consolidated Act on narcotics;
• False corporate statements;
• Fraud;
• Crimes, whether completed or attempted, committed for terrorist purposes, including international terrorism or subversion of the constitutional order, as well as offenses connected with terrorist activities;
• Child labor exploitation and other forms of human trafficking;
• Any other criminal offense resulting, as an ancillary penalty, in the incapacity to contract with the Public Administration.

In such cases, exclusion from the Italian public tender procedure is mandatory and immediate.

Article 95 regulates non-automatic grounds for exclusion, which are subject to the discretionary assessment of the contracting authority. These include, for example:

• Serious violations of health and safety regulations at work, as well as environmental, social, and labor law obligations;
• Situations of conflict of interest arising from the participation of the economic operator in the procedure;
• The commission of a serious professional misconduct by the tenderer, capable of calling into question its integrity or reliability.

Article 98 provides an exhaustive list of what constitutes serious professional misconduct under Italian procurement rules and identifies the means of proof that contracting authorities may rely on to establish such misconduct.

Finally, Article 97 governs the cases of exclusion relating to temporary groupings of companies (RTI) and other forms of joint participation, clarifying when exclusion applies to individual members or to the entire grouping.

Understanding these grounds for exclusion from Italian public procurement is crucial for foreign companies, both EU and non-EU, seeking to access the Italian public contracts market and to avoid disputes, exclusions, or the need to file an appeal against exclusion from a public tender in Italy.

Exclusion from italian Public Procurement: what to do

Foreign and domestic companies can challenge the following through a TAR appeal in Italy:

• Illegal or irregular tender notices
• Unjustified or unlawful exclusion from public tenders
• Irregular award of contracts to competitors
• Unilateral modifications to the contract after award

In the context of Italian public procurement law, the notification of exclusion or the publication of the award triggers a 30-day deadline to file an appeal with the competent TAR (Regional Administrative Court). Appeals must be submitted through a lawyer specialized in administrative law in Italy, and served on the contracting authority as well as other interested parties.

In some cases, it may be advisable to request annulment in self-defense (autotutela), presenting the reasons for illegality in advance, in the hope that the administration will correct the mistake and reinstate the excluded bidder. However, it is important to note that such a request does not suspend the tender procedure nor the deadline for filing a TAR appeal, and therefore must be considered carefully as a procedural strategy.

The grounds of exclusion from participation in public procurement procedures include:

• Incorrect assessment of the general or special requirements of the company
• Failure of the contracting authority to comply with transparency and competition rules
• Breach of impartiality and proper conduct principles of the public administration
• Generic or contradictory reasoning for exclusion
• Uncertainty in the interpretation of tender conditions
• Errors in scoring or evaluation
• Excessive rigidity in applying tender requirements

In many cases, it is possible to successfully challenge the exclusion from a public tender and obtain reinstatement, particularly if the contracting authority:

• Fails to correctly activate the mandatory "soccorso istruttorio" (opportunity to correct or integrate submitted documents)
• Misinterprets the applicable public procurement legislation
• Conducts an inadequate evaluation or administrative investigation
• Exhibits discrimination or favoritism

Filing a TAR appeal in Italian public procurement requires payment of the administrative unified contribution (contributo unificato), which varies depending on the value of the dispute:

• For disputes related to awards and public procurement procedures for works, services, and supplies:
• • €2,000 for disputes up to €200,000
  • €4,000 for disputes between €200,000 and €1,000,000
  • €6,000 for disputes exceeding €1,000,000

These amounts are increased by 50% in case of appeal to the Council of State (Consiglio di Stato).

If the TAR appeal is successful, it may result in:

• Annulment of the award
• Repetition of the tender procedure
• Reinstatement of the appealing company in the contract
• Compensation for damages suffered

If the TAR appeal is rejected, it is possible to challenge the decision before the Council of State.

Suspension of exclusion public procurement Italy

One of the most important options in appeals to the TAR in Italian public procurement is the request for suspension (sospensiva). In a precautionary phase, the TAR can suspend the execution of the contract if it considers that the damage to the appealing company would be serious and immediate.

Filing a TAR appeal with a request for suspension is essential, as it allows the company to "halt" the award procedure pending the final judgment. The precautionary decision is usually issued quickly, typically within 20–30 days from filing.

Arnone&Sicomo – International Law Firm: How can help you

Exclusion from an Italian public tender requires immediate legal action and a clear understanding of Public Procurement Law in Italy. Appeal deadlines are very short, and mistakes in the procedure can permanently prevent a company from accessing the contract.

For foreign bidders, professional support is essential. Working with an Italian procurement lawyer for foreign companies allows you to challenge exclusion decisions effectively, request interim relief, and protect your market position. An English speaking public procurement lawyer in Italy ensures clear communication, full procedural compliance, and strategic representation before the Administrative Courts (TAR).

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.