Home » Nine executives and former executives of the Umbrian health sector sentenced to compensation of 5.5 million for seriously deficient and inefficient procurement procedures

Nine executives and former executives of the Umbrian health sector sentenced to compensation of 5.5 million for seriously deficient and inefficient procurement procedures

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Nine executives and former executives of the Umbrian health sector sentenced to compensation of 5.5 million for seriously deficient and inefficient procurement procedures

by Fernanda Fraioli

The Court of Auditors, Jurisdictional Section for Umbria. sentenced nine managers and former managers of the regional health system to compensation of 5.5 million euros for having followed the procedures for the procurement of goods and services, which were seriously deficient and inefficient, which caused damage to the coffers of the ASL for an amount of almost 6 million euros which were reduced in the sentence to 5.5 only because a part was found to be covered by a statute of limitations which therefore extinguished the credit relating to the damage prior to July 2016

05 DIC

It is true we are in first instance, but the sanction is one that makes itself felt. And if it were confirmed in the appeal, then the decision would truly be definitive because the trial before the Court of Auditors ends with only two levels of judgement.

The sentence – issued by the Court of Auditors, Jurisdictional Section for Umbria with Sentence 23 November 2022, n. 99 – is a little less than what is required by the Prosecutor’s Office and only for adventure. So not on the merits. The substance remained intact.

The sentence is for having followed the procedures for the procurement of goods and services, which were seriously deficient and inefficient, which caused damage to the coffers of the ASL for an amount of almost 6 million euros which were reduced in the sentence to 5.5 only because one part was covered by a statute of limitations which therefore extinguished the claim relating to the damage prior to July 2016.

In the face of the more numerous sentences that are recorded in the health sector by the accounting judge, this one differs from them because it is not a question of damage to the health of citizens, but of the methods adopted to obtain supplies of material, still aimed at assistance of patients.

Subject of the maxi-contract for the wash-hire and sterilisation, extended for several years, which involved the Umbria Local Health Authority and the Perugia Hospital for which “the defendants – reads the sentence – have used the tool in a pathological and abusive way, with the production of substantial tax damage”.

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Translated from a legal case that is perhaps difficult to understand, the defendants are nine between managers and former managers of the regional health system required to pay compensation, in favor of the Perugia hospital and the Umbria 1 local health authority, of 5.5 million euros.

In fact, all the defendants, in different forms, times and ways, contributed to the protraction of the service of the previous contractor, causing the production of damage to public finance deriving from the failure to compete, through economic conditions that were, moreover, worse than those proposed from the previous custodian”, ruled the accounting judges.

Of course, according to the law governing the accounting judgement, everyone will be liable for the damage for the part that has taken it, which means that the pecuniary sanction in which the overall sentence consists is not the same for everyone in its amount, but in relation to the function performed and the degree of participation in the fact that was deemed to cause damage to the Health Administration coffers.

For example, the three medical directors, in consideration of the different role, more secondary and less relevant, played in the affair compared to the other defendants, were charged a smaller portion of the damage.

This proceeding before the accounting judiciary was born as a branch of a broader investigation (the so-called Concorsopoli) but which specifically concerns tenders and contracts in the health sector which led the judges to ascertain the damage, thus quantified, with reference to the difference between the cost of the services invoiced by the previous contractor and that in the case of a new tender.

The contract which involved mattresses, sheets, pillows, sterilisation, etc…., won by a specific company way back in 2010, should have expired in 2013, then in 2015, then again in 2017 – but for reasons that the judges considered absolutely inconsistent, so as to lead to the condemnation of the directors – lasted until 2021.

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Too many years that “they conflict with any standard in terms of competition and free access to economic activities”, as highlighted by the Prosecutor, recalling that “the easy extension was a widespread practice in the Umbrian health companies” with clear reference to the energetic considerations that the ANAC had already released in the past (it was 2020) always on the matter.

So much did the prosecutor shout at the “easy extensions” and to the “widespread practice” to represent how there were too many years in which the contract had articulated, with an approach contrary to the rules on competition, deeming weak the justifications given by the defense of the defendants in court which substantiated in the concern for the future of the 60 workers of the local supplier company or, even worse, in the difficulty of obtaining the necessary CIG (the identification code of a tender), as well as in the new regulations such as those relating to centralized purchasing.

It is true that the defense must unleash its sharpest weapons in court, but it is equally true that – apart from the dubious pertinence of the objections made – the accounting judges, in the face of an absolutely rigorous and most respectful procurement law protection of competition appeared unacceptable, so much so as to affirm the absence of any “doubt that the planning, design, conception activities, upstream, and those of effective implementation of the new public procedure, downstream, have been seriously deficient and inefficient, and that these management methods have caused a significant damage to public finance”.

Stating, then, with an explicit reference to the European legislation notoriously conditioning the national one, that the extensions are “an exceptional and temporary tool”, while in this case it was “pathological and abusive, with the production of substantial tax damage”, which was considered marked by a particularly qualified psychological element such as the very serious fault that distinguished the management “macroscopically inefficient as the new tenders should be scheduled and carried out before the expiry of the old ones”.

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The judges recognized in the sentence that neither before the original deadline nor during the period of the first extension were the tender procedures for the assignment of the service to a new entity completed,

Now, what is highlighted by the defense of the defendants may also be true, but it is equally true that the Health Administration cannot take charge of it, which has quite other occupations to tend to which are more specific and pertinent to the service it must carry out for all the patients who they turn to his care.

Therefore, if it is true that the employment future of the 60 local workers of the company, then on layoffs and worried about the possible loss of the contract, was a value decidedly not to be underestimated, it is equally true that a violation of the law cannot be justified to protect it European and national legislation by an Administration, such as the health one which institutionally deals with something else, that is the protection of the health of the population, not with employment policy, moreover with personnel not really its own.

The difficulty of obtaining the so-called CIG was also considered inconsistent due to the concurrent birth of the Single Regional Purchasing Office which allegedly proceeded with a single tender of which, however, in the extensions adopted, no mention is found that – as evidenced by the indictment – it was enough to ask the ANAC, specially appointed to issue it.

Fernanda Fraioli

Advisor to the Court of Auditors

05 December 2022
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