Continuity Requirements between Tendering Procedure and Execution Phase

Abstract

The paper aims to investigate the legal basis of the principle that tender requirements, general and special, must be held by the economic operators without interruption from the time of submission of bids until completion of the execution of the contract. The source of this principle is unanimously identified in several decisions of the Plenary Assembly, whose dictum would have been incorporated by the legislator in a provision of the 2016 public procurement code, then reproduced in the currently applicable code. The first implication of the principle of continuity in the fulfilment of requirements is that the fact that during the tender procedure there is a moment when the administration must verify the actual existence of the declared requirements by the competitor, does not exclude that the former should and can continue the investigation also in other stages of the procedure, since at any time of it the constant possession of these admission requirements must be required. The case law goes much further, stating that the contracting entity can verify whether the requirements declared are actually met even during the execution phase: in this sense, the position of the successful tenderer and that of the contractor would not differ from that of the other competitors since all would always be subject to this verification during the stages. In the concluding part of the essay, it is explained why such a lapidary statement does indeed cause some perplexity.