I requisti di partecipazione e l'esclusione dalle gare d'appalto : un approccio comparato tra Brasile, Francia e Italia

Field: Social Sciences (Social Sciences)

Eligibility and exclusion requirements for bidding: a comparative approach between Brazil, France and Italy: The supplier selection process is a fundamental challenge for any organization. In public administration this subject becomes even more complex, taking into account the legal provisions in force which essentially aim at guaranteeing respect for the constitutional principle of equality, "cornerstone" of any legal system. The public administration has the right to define the criteria for participation and to compare the offers put forward by the different parties interested in exercising a job, providing a good or service in order to choose the most advantageous offer. On the other hand, the parties concerned have the right to participate in an appropriate administrative procedure which provides for equal and non-discriminatory treatment for the various tenderers. Unlike individuals, public administrations do not have the freedom to choose the actors with whom to negotiate in a discretionary manner, but they must take this decision in the area of procedures guaranteeing, on the one hand, the most favorable agreement and the 'execution in better conditions of tranquility and security and, on the other hand, the possibility for economic operators to compete on an equal footing for the award of the contract. Discretionary power is often considered the necessary remedy against the rigidity of the rules, the automatic mechanisms which do not allow the tendering and adjudication to be adapted to the concrete requirements of the administration, the dominant formalism which often inevitably separates the legitimate decision of the correct and effective one. The objective is to set the limits of the discretionary power that the public administration has in order to determine the subject, establish the conditions necessary to participate in tenders and their exclusion hypotheses. These conditions must be applied without violating the principle of equality and on the basis of criteria of logic, reasonableness and non-discriminatory proportionality, so as not to represent an illegitimate restriction on the rights of undertakings operating on the market. The aim of the thesis is to find the dividing line between the right of the public administration to guarantee the conditions of technical, organizational, economic and financial capacity, as well as to establish the causes of the exclusion of tendering and the right of companies not to prevent them from participating because of horrible criteria which violate the principles of equality and free competition. The study consists of two parts. The First Part addresses the themes which will enable readers from the three countries to know the general aspects concerning the discipline in each of them by analyzing the historical and regulatory evolution of the system of sources of European Union law (l study of the differences between the EU and Mercosur, the transposition of Community rules and their implementation, the dialogue of sources) and the analysis of the contractor selection procedure (which contains a short description of the procedures in the three country). It is, therefore, a more conceptual and "introductory" part in the broad sense. The Second Part analyzes the criteria for participation and exclusion from tendering procedures, through the study of general criteria (or of morality), special criteria (technical, economic and financial criteria) and the rules of procedures which allow the contractor selection procedure to be implemented. We also examine the role of those responsible for the procedure and the tender committee, the characteristics of the single European market document (ESPD), the regularization of irregular tenders and the company rating which is only provided for in the Italian legislation.