Decision n. 14389, 4th November 2022, Regional Tribunal of Lazio, sec. V, Italy
Article(s) in Directive 2014/24/EU: Art. 19, Art. 72
Topic: Admissibility of subjective amendments even in the contract award phase
Member State: ITA
Court/rev. board: TAR Lazio
1. IMPLEMENTATION / RELEVANT NATIONAL LEGISLATION
Art. 41, comma 2, Art. 119, comma 1, letter a, Article 120 of the Code of Administrative Procedure; Art. 80 Code of Public Contracts; Art. 95, 97, comma 1, Legislative Decree no. 50/2016
2. FACTS
Through an appeal of December 2021, the appellant (Euro&Promos Facility Management S.p.A.) challenged the decision of the TAR by which the tender was awarded in favor of the temporary joint venture DIEM s.r.l. (agent), SIALIA s.c. a r.l. and Consorzio Pulinissa Sicilia s.r.l. – CPS (agent), i.e. the centralized open community tender for the award of the cleaning and sanitizing service for the Regional Health Authorities and Hospitals (lot n. 4).
3. JUDGMENT
In the context of public procurement procedures, economic operators are obliged to challenge any breach of the procurement rules when they may derive a “useful effect”, including of an instrumental nature such as the re-run of the entire procedure, within a period of 30 days, starting from the moment they became aware of the breaches, or could have become aware of them by exercising ordinary diligence. Such duty does not only apply to the second-ranked economic operator, but also extends to all the competitors, even those ranked further down the list. In the framework of a complex corporate reorganization transaction involving the principal, Consorzio Pulinissa Sicilia srl (CPS s.r.l.), the business segment related to cleaning and sanitation services was transferred to CPS Evo s.r.l., including the assets and liabilities relating to that business. The regional defense clarified that this was merely a matter of corporate reorganization, with the consequent succession in the position of the original competitor, which was found to be in possession of all the prescribed subjective requirements. In this regard, the Tribunal referred to the disputed admissibility of internal substitution, specifying that, in is ruling n. 2 of 25 January 2022, the Plenary Assembly of the Council of State clarified that the subjective modification of the temporary grouping of companies, albeit only in reduction, is permitted not only during execution but also during the tender phase.
The Tribunal eventually adhered to the interpretative elaboration confirming the applicability of the principle “of the admissibility of subjective changes of the competitors also in the phase of the award of the contract” (Council of State, Section III, 18 September 2019, n. 6216). It underlined the enduring need to safeguard the contractual freedom of companies, which must be able to proceed with the company reorganizations deemed appropriate without being undermined by the performance of the tenders in which they participated.
Therefore, in a case of succession between corporate forms, due to the restructuring of the corporate structure, subjective changes are admissible even in the public phase of the award, prior to the private contractual conclusion. Not doing so would, without any valid justification, undermine the natural entrepreneurial vocation of persons participating in public tenders as well as the very essence of entrepreneurial activity, in express contrast, moreover, with the principle of the peremptory nature of the grounds for exclusion, laid down in Art. 80 of the Public Contracts Code.
