The Sixth Division of the Supreme Court of Appeal, with the recent judgment no. 7260 – filed on 1 March 2022 – established the definition of the offence of bid-rigging even in the event that the offence occurred before the submittal of the tender notice.
In fact, according to the Judicial Review Court judges, the crime referred to in art. 353 of the penal code can also be committed even when the call for tenders has yet to be submitted, but the tender notice is already “specific and certain”.
The judicial panel has stated that “the offence alternatively indicated by the criminal law provision, through which the tender can be prevented or rigged, may not necessarily be committed at the precise moment in which the tender is being submitted, as it can take place at any time of the procedure leading to the tender or even outside the procedure. Thus, bid-rigging can also occur in the period leading up to the tender through a conduct aimed at influencing or altering the result “.
According to Luigi Tassinari, Atty., this conclusion would also be reached following the introduction of the crime of bid-rigging in the choice of the contractor (Article 353-bis of the Penal Code), whereby lawmakers would punish as bid-rigging offences actually committed – if a tender had not been submitted yet – those offences they would have previously considered only an attempt at bid-rigging, without, however, deeming the formal call for tenders an objective prerequisite for the crime referred to in penal code art. 353.
In conclusion, according to the Court, “the significance of any collusive conduct carried out before the submittal of the tender notice remains a punishable form of collusive bidding”.