An accusation of fraud in public supplies can arise from a delivery deemed non-compliant, materials different from those agreed upon, a contested technical service, or documents that appear inconsistent with the contract. If your business operates in Milan or elsewhere, the first doubt is often concrete: can an operational difficulty, a delay, or a questionable technical choice truly become a crime?
The answer does not depend solely on the discrepancy. I want to help you distinguish contractual breach from fraudulent conduct, understand why specifications, orders, and technical checks matter so much, and clarify when the allegation may also involve the company pursuant to Legislative Decree 231/2001. These are different levels that must be kept distinct from the very beginning.
What Article 356 of the Criminal Code Concerns
Fraud concerns the execution of the relationship, not just the tender. Article 356 of the criminal code concerns fraud in the execution of supply contracts and other contractual obligations referred to in Article 355. The central point is therefore what happens after the agreement with the State, a public entity, or a subject exercising a public service or public necessity, not merely the way in which the contractor was chosen. The current text of the code can be consulted in the Criminal Code on Normattiva.
The contract must have a relevant public function. Not every commercial relationship with a company with public participation or with a private entity automatically falls within the scope. It is necessary to identify the contractor, the service or the establishment to which things or works are destined, and the precise obligation assumed. The name of the contract is not enough: its effective content and the function of the performance matter.
The allegation must identify concrete conduct. It is not sufficient to state in a generic way that the supply was "shoddy" or "irregular". It is necessary to connect the alleged fraud to specific goods, workmanship, quantities, characteristics, times, or execution modalities. For this reason, a well-defined allegation must make it clear which contractual clause is assumed to be violated and in what way the performance would have been rendered different from the due one.
Contractual Discrepancy and Fraud Do Not Coincide
A breach does not automatically become a crime. A delay due to the unavailability of components, a correctable technical error, a contested workmanship, or a discrepancy of modest entity can produce contractual consequences. However, they are not enough on their own to demonstrate fraud. Even a deliberate breach is insufficient: there must be a deceptive device presenting a non-compliant performance as compliant. This distinction is reflected in Court of Cassation judgment no. 25372 of 2023. Awareness of that conduct must also be proved.
Operational good faith must be distinguished from the conscious choice to circumvent the contract. If a business uses a different component because it is authorized, because it is technically equivalent according to applicable specifications, or because the modification was agreed upon and documented, the fact must be read differently from a hidden substitution. Likewise, a non-compliance emerged during testing does not demonstrate by itself that whoever performed the service intended to provide something different from what was due.
Fraud (swindling) is an additional accusation, not a synonym. When artifices or deceptions directed at obtaining a profit with damage to the counterparty are alleged, fraud in the sense of swindling may also come into play. The difference is important: a decision of the Court of Taranto highlighted, in a case regarding spare parts delivered as original ones, that fraud can concur with fraud in public supplies if artifices or deceptions, damage, and unfair profit also emerge. The case is illustrated in the institutional page of the Court of Taranto; however, it does not replace the analysis of the facts of a different proceeding.
Remedying does not cancel the criminal problem on its own. Replacing the good, repeating a workmanship, or acknowledging a penalty can be useful in the contractual relationship and can modify the practical framework of the affair. However, it does not establish by itself whether the previous conduct was intentional or whether it was instead the result of an error, an interpretive contrast, or a non-fraudulent executive difficulty.
The Specifications Define What Was Truly Due
The first question is what performance the contract required. The technical specifications, the accepted offer, the contract, the executive orders, and any variants establish characteristics, standards, quantities, and control methods. A commercial formula like "equivalent product" can take on very meanings: sometimes it is permitted, sometimes it requires specific authorizations, sometimes it is excluded by a punctually precise technical prescription.
Authorized modifications change the comparison. A subsequent request by the contracting authority, a service order, a meeting report with binding content, or a formalized variant can affect what the business was required to deliver. Conversely, a practice referred to only verbally, but not compatible with the contract or not provable, can leave the problem of discrepancy open. The date of each document matters because it allows reconstructing the sequence of decisions.
Technical proof must be legible and verifiable. Certificates of conformity, manufacturer datasheets, transport documents, warehouse registers, test reports, photographs, and acceptance reports can be decisive only if they connect a specific good or workmanship to the contract. A generic document lacking reference to a lot, serial number, quantity, or construction site may have limited weight. Even a technical consultancy must explain the method, examined data, and reasons for the conclusion.
The reconstruction cannot stop at the initial allegation. It is also necessary to consider the checks performed, the reservations formulated, the requests for clarification, and the answers already given. If the public administration has accepted a performance with specific documentation, that fact does not absolutely exclude a criminal allegation, but it can be relevant to understand what was known, who decided, and what the meaning of the indicated discrepancy was.
The Criminal Liability of the Individual and That of the Enterprise
The contract in the company's name does not identify the criminal offender by itself. In criminal proceedings, it is necessary to distinguish the role of the administrator, the technical director, the project manager, the purchasing employee, and any external suppliers. A formal position does not automatically demonstrate who ordered a replacement, prepared a document, or chose an executive modality.
Delegation matters if it is real and consistent with the powers exercised. Organization charts, powers of attorney, delegations, authorization flows, and internal communications help establish who had the concrete power to decide and who possessed the technical information. A merely nominal delegation does not solve the problem; likewise, the fact that a person does not hold a top-management qualification does not automatically exclude them if they had an effective contribution to the contested conduct.
Defensive positions may not coincide. The company's interest in demonstrating the correctness of its organizational processes does not always coincide with that of the single individual accused of having acted autonomously. This does not mean there is necessarily a conflict, but it requires clarifying from the outset which facts each subject attributes to themselves, which decisions they recognize, and which ones they contest instead.
When Entity Liability Pursuant to Legislative Decree 231/2001 May Come into Play
The company is not automatically liable for a crime attributed to an individual. Article 24 of Legislative Decree 231/2001 now includes Article 356 of the criminal code among the offenses that can form the basis of entity liability. The inclusion was provided by Article 5 of Legislative Decree 75/2020, in force since July 30, 2020, as shown in the text of the regulatory intervention on Normattiva.
The entity's interest or advantage is required. Legislative Decree 231/2001 requires that the predicate offense was committed in the interest or to the advantage of the company by top-management persons or those subject to their direction or supervision. If the person acted exclusively in their own interest or that of third parties, the entity is not liable pursuant to Article 5. This criterion requires looking at the facts: a cost saving, the acquisition or conservation of a contract, and a corporate advantage are different matters from the hidden personal gain of an individual.
To exclude liability, the 231 compliance model must be effective before the offence. For crimes committed by top-management subjects, Article 6 provides precise conditions for the entity to be exempt from liability: an organizational model suitable and concretely implemented prior to the fact, a supervisory body with autonomous powers, fraudulent circumvention of the model, and the absence of omitted or insufficient supervision. The reference is Article 6 of Legislative Decree 231/2001. A model adopted after the offence cannot establish that preventive measures were already in place. However, it may affect sanctions: Article 17 allows disqualification sanctions to be avoided if, before the first-instance trial opens, organisational shortcomings are remedied and the further conditions concerning reparation and making the profit available for confiscation are also met.
The consequences for the entity can affect operations. Article 24 provides pecuniary sanctions and, in cases established by the rule, disqualification sanctions. For a business that works with public entities, it is therefore not sufficient to discuss the quality of the supply: it is necessary to distinguish the accusation against the natural person from the allegation against the entity, without confusing their respective preconditions.
How to Set Up the First Steps After an Allegation
It is first necessary to understand what document has arrived and what it alleges. A request for clarification from the administration, a contractual notice to comply, an inspection, a notice of investigation, or a search warrant have different functions. The text of the act indicates the attributed fact, the considered period, and, when already present, the legal qualification. It is not useful to respond to everything indiscriminately: the priority is not to create contradictions between the contract, technical documentation, and subsequent communications.
Documentation must be preserved in its original sequence. Contract, annexes, specifications, orders, emails, registers, certificates, transport documents, and reports must remain intact and recognizable. Retroactively correcting a datasheet, producing reconstructive statements without feedback, or deleting messages can worsen the position instead of clarifying it. An essential timeline helps separate what was foreseen from the origin from the choices intervened during execution.
The defensive line must address the decisive facts. If the good was compliant, it is necessary to explain with respect to which specification and with what feedback. If it was different, it is necessary to understand whether the modification was authorized, inevitable but communicated, technically equivalent, or instead unauthorized. If an intentional choice emerges, it becomes essential to establish who made it, with what information, and whether the enterprise drew an interest or advantage relevant to the 231 discipline from it.
Frequently Asked Questions
Does every discrepancy with respect to the specifications constitute fraud in public supplies?
No, the discrepancy is not enough on its own. It is necessary to distinguish a breach, a technical error, or a delay from non-compliant performance accompanied by a deceptive device that makes it appear contractually compliant. The specifications, any authorizations for modification, communications with the entity, and the behavior of whoever performed the service are the elements that allow understanding whether intent exists.
Can I use a product equivalent to the one indicated in the public contract?
It depends on the applicable clause. Equivalence can be permitted, excluded, or subordinated to requirements and authorizations. It is not sufficient that the product is similar or technically valid: it is necessary to verify whether it complies with established criteria and whether its adoption was communicated or approved when the contract requires it.
Is the company always liable if one of its administrators is under investigation?
No, 231 liability has autonomous preconditions. To involve the entity, the predicate offense, the link with top-management or subordinate persons, and the interest or advantage of the company are required. The accusation against the natural person and that against the entity can develop together, but they do not automatically overlap.
Can fraud in public supplies and swindling be alleged together?
Yes, but they have different elements. Swindling also requires artifices or deceptions, damage, and unfair profit; fraud in public supplies requires non-compliant performance concealed by a deceptive device. When both groups of elements are present, the allegations can concur. Therefore, the fact described in the charge must be read with precision.
Does a 231 model adopted after the allegation exclude the enterprise's liability?
No, it does not prove prior preventive effectiveness. For the discipline of Article 6, the model must have been adopted and effectively implemented prior to the fact, in addition to the other requirements provided by law. Subsequent adoption may affect sanctions and, together with the other requirements of Article 17, prevent disqualification sanctions. It does not retrospectively eliminate liability for the alleged conduct.
A Defense Starting from Verifiable Facts
Criminal qualification is not decided by the name of the allegation. It is decided by comparing the contractual obligation, the performance rendered, available documents, the role of the persons involved, and, for the enterprise, interest or advantage and the organizational setup prior to the fact.
If you must face an allegation of fraud in public supplies in Milan, you can contact me: together with the staff, we can frame the contested fact and distinguish the criminal, contractual, and 231 aspects that require a coherent response.