Articles 353 and 353-bis of the Penal Code, which respectively regulate the crimes of disruption of freedom of tenders and disruption of the procedure for choosing a contractor, are fundamental tools for ensuring the transparency and fairness of public tenders. Their recent integration into the system of administrative liability of entities, as outlined in Legislative Decree 231/2001, broadens their scope, focusing not only on criminal repression but also on prevention through organizational mechanisms.
What do Articles 353 and 353-bis of the Criminal Code provide for?
(a) Article 353 (Disturbing the freedom of auctions): This article punishes anyone who, by violence, threats, gifts, promises or other fraudulent means, disturbs the freedom of auctions (public auctions) in order to influence their outcome.
(b) Article 353-bis (Disturbing freedom of the procedure for choosing a contractor): This article expands protection by including any stage of contractor selection in public procedures, punishing anyone who, by fraudulent means, disturbs the freedom or regularity of the proceedings.
By way of example, the crime of disrupting the freedom of auctions takes place when a contractor, in agreement with other participants in a public auction, agrees not to raise more than a certain amount in order to win the asset at a price below market value.
Again, in the context of calls for tenders — in any form, including private bidding — published by contracting stations, a company attempts to be favored by entering into a sponsorship agreement or determining to make a donation to the contracting station, for the sole purpose of getting money in exchange, precisely, for an advantage.
As for the crime related to disturbing the freedom of the procedure for choosing a contractor, consider, for example, the case where a public official alters the criteria for evaluating bids in a tender in order to favor a particular competitor, ensuring that the latter wins despite the fact that the bid is not the most advantageous.
The Impact of Legislative Decree 231/2001
Legislative Decree 231/2001 (Decree 231) introduces a system of administrative liability for entities that benefit or profit from certain crimes committed in their interest or advantage. Therefore, Articles 353 and 353-bis are among the predicate offenses – in Article 24 of the Decree – that can result in the liability of the entity.
This liability is triggered if the crime is committed by:
- Management and executives;
- Personnel subject to the management or supervision of the apical persons, or in any case, any resource of the entity who has an active role in the cases under consideration;
and the the company affected by the potential crime has not adopted internal Management and Control Organizational Models, suitable to prevent it.
How to Prevent These Offenses?
In order to avoid criminal liability under Decree 231, an entity should adopt an Organization, Management and Control Model (OMCM that includes specific measures to prevent-in this case and among others -the disruption of tenders and contract selection procedures.
It should also be recalled that the catalog of predicate offenses under Decree 231 is very broad and is subject to periodic supplementation.
In fact, the objective of Decree 231 is to:
(i) Prevent crimes : To stimulate companies to adopt organizational and management models suitable for preventing the commission of crimes.
(ii) Hold companies accountable: Introduce a system of sanctions that punishes entities not only economically, but also with disqualification measures.
(iii) Promote compliance: Incentivize companies to operate according to standards of legality and transparency.
The company may then indeed be exempted from liability for crimes committed if it proves that:
- The OMCM was adopted and effectively implemented before the crime was committed. The OMCM must be updated whenever it is deemed necessary and/or appropriate downstream of additions to Decree 231.
- An autonomous and independent Supervisory Board has been appointed pursuant to Decree 231.
- The crime was committed by fraudulently circumventing the OMCM.
- There was no failure or insufficient supervision by the Supervisory Board.
The OMCM to be efficient will have to include:
- Risk mapping (risk assessment) related to the offenses under the decree.
- Organizational and operational procedures to prevent the identified risks.
- A disciplinary system to sanction any violations.
- Appointment of an independent Supervisory Board (SB) to oversee the effectiveness of the model.
- Periodic training programs for employees.
Existence of accountability.
The adoption of the OMCM is not mandatory, but its absence makes it much more difficult for the company to avoid liability in case of crimes committed internally. In addition, for the case of public tenders, it is usual for contracting stations to require as a requirement for participation that an OMCM has been implemented.
In addition to this, in the case of applications for advantageous public funding (e.g., NRRP) by private entities and/or applications for accreditation by, again, private entities, e.g., in the training sector, the presence of an OMCM is often a condition for the very access to said funding and/or accreditation.
Conclusions
Articles 353 and 353-bis of the Penal Code, integrated within the framework of Decree 231, represent a powerful deterrent against fraudulent behavior in public tenders. Their application not only sanctions the individual offender, but also holds the entity accountable, incentivizing it to take preventive measures.