UDINE. The regional health coordination company of Udine (ARCS) managed the special waste disposal service “in an ineffective, non-timely manner and violating the principle of competition”.
This is what Anac ascertained with resolution no. 535 of 16 November 2022 approved at the end of the inspection carried out by the Guardia di Finanza on the mandate of the President of the Authority, Giuseppe Busia. When the original five-year assignment expired in 2017, the Company resorted to eight extensions before arriving, only in December 2020, at the announcement of a new tender which was then awarded a year later. The service was therefore managed for more than ten years by the same temporary consortium of companies.
The facts
The tender for the five-year assignment of the waste collection and disposal service produced by the local healthcare companies, for a basic amount of 20,800,000 euros plus 6,240,000 for contractual extensions, was won in 2012 by the temporary grouping of companies (RTI) Mengozzi/Saste Ecological Services./Hafner Service/Team Ambiente/Coopservice.
Five years later, a technical extension of six months was arranged under the same economic and contractual conditions. In this first case, the Company has made use of the option to extend the contract up to a maximum of six months, pending the definition of a new contract. Subsequently however, the contract was extended seven more times for a total amount of 13,500,000 euros.
The first four extensions were motivated by the need to ensure continuity of service pending a new tender; since 2020, however, the extensions have been justified by referring to the emergency situation due to the pandemic.
The defense of the Udine health agency
The Company highlighted that it had convened the work of the technical group for the preparation of the tender specifications for the new tender two months earlier than November 4, 2017, the expiry date of the first contract. The members of the group were identified directly by the bodies of the regional health service and this, according to the contracting station, if on the one hand allows for the development of specifications that truly respond to the many needs of the various bodies of the system, on the other hand it cannot fail to take account of the numerous other institutional commitments incumbent on the subjects called to be part of the technical group, all the more onerous and stringent the more “qualified” their role is, with an inevitable extension of the closing times for the works.
The new procedure was therefore banned on 11 December 2018 but the tender went deserted. The next tender will only arrive on 28 December 2020: the contracted service is divided into six lots, one for each Regional Health Service body of the Friuli Venezia Giulia Region. On December 10, 2021 it is awarded.
In its counterarguments, the Company explained that the time necessary for the calling of the tender procedures in both cases did not in any way depend on scarce availability or negligence of the structures, but rather on the overlapping of a series of situations that have objectively prevented us from doing it sooner: the reform of the Regional Health System which has profoundly redesigned the institutional structure of the Bodies, and the months of stop and delays imposed by the pandemic emergency.
In the meantime, the Healthcare Company, having to ensure that the special waste collection and disposal service was guaranteed, extended the contract at the same economic conditions as the previous contract with the sole exceptions of the tariff adjustment.
The Anac reliefs
The Anac recalls that the prohibition of extension of public contracts is in force in the Italian legal system. The extension, in fact, translates into a case of assignment without tender, with violation of the Community principles of free competition and equal treatment.
The exception to the general principle of the prohibition of extension takes the form of the institution of the so-called technical extension which must be of an exceptional and temporary nature, being an instrument aimed exclusively at ensuring a given service in favor of the public administration, in the transition from a contractual regime to another.
In the case in question, when there was the first “technical extension”, envisaged by the tender documents, the procedure for awarding the new tender had not been started but the technical group had simply been set up. So according to Anac, neither the first extension (although provided for in the tender documentation), nor all the subsequent ones, are fully compliant with the law.
The Anac therefore highlights a lack of planning activity, and not even the law reforming the regional health service can be defined as an unpredictable event given that it limited itself to postponing the entry into force of an institutional structure already identified until 1 January 2020 . While understanding and acknowledging the specific difficulties complained of by the contracting station in relation to the pandemic, Anac underlines that, from 4 November 2017 (expiry date of the original contract), only about three years later, on 28 December 2020, the deeds of the new tender procedure.
At the end of the inspection carried out also in relation to the execution phase of the tender contract, the Guardia di Finanza found a further anomaly concerning the absence of the figure of the Contract Execution Director (DEC) in violation of the provisions according to which, in the case of the provision of services for an amount exceeding 500,000 euros, the director of the execution of the contract must be a different subject from the person in charge of the procedure.
Finally, in the Anac resolution, it ordered the monitoring of the contract in order to acquire information regarding the execution of the new special waste management service.