Decision n. 1607, 15th February 2023, Council of State, sec. V, Italy
Article(s) in Directive 2014/24/EU: Art. 46
Topic: Division into lots; Lack of specific and adequate justification for the choice not to subdivide; Illegality
Member State: IT
Court/rev. board: Council of State
1. IMPLEMENTATION / RELEVANT NATIONAL LEGISLATION
Article 51 Legislative Decree No. 50/2016
2. FACTS
The applicant in first instance, a company in the sector of postal services, alleged the illegality of a notice through which the company for the mobility of the geographical area of Taranto (AMAT S.p.a.) held a procedure for the awarding of the postal services for the duration of three years.
According to the company, the tender in question would have foreseen an illegitimate direct awarding to Poste Italiane s.p.a. as the only operator who could concretely participate in it. In the merits, the applicant challenged the structure of the tender, assuming that its conformation into a single lot, in conjunction with the professional requirement required (the qualification for notifications valid for the national territorial scope), posed a barrier to its entry into that specific market. In line with the case law, it was also underlined that, given the profiles of immediate harmfulness found in the lex specialis due to the failure to divide the contract into lots and the prescribed participation requirement – which was not possessed by the appellant – the clauses of the notice in question could and should have been immediately challenged by the appellant, regardless of its participation in the tender.
The Administrative Court upheld the appeal, arguing the “violation and false application of Article 51 of Legislative Decree no. 50/2016”. Consequently, it annulled the contested notice. AMAT S.p.a. then filed an appeal against the first instance judgment, claiming that it was erroneous, because grounded on a formalistic application of Article 51. It was recalled that, in any case, it would not be unreasonable or arbitrary not to divide the contract into functional lots taking into account the nature of the service provided and the need to entrust it, for reasons of homogeneity and uniformity of its performance throughout the country, to the same operator. This choice would be based on the principle of unitary procurement (principio di unitarietà) as enshrined in Article 5, para. 2 of Legislative Decree of 22 July 1999, no. 261.
It was recalled that according to Article 58 of Directive 2014/24/EU, “the adjudicating administrations could impose prerequisites to guarantee that the economic operators own the necessary human and technical resources to execute the procurement with an adequate quality standard”. In this perspective, AMAT S.p.a.’s choices would be expression of this discretion. In the light of the foregoing, AMAT s.p.a. argued that it should not have ordered the division of the contract into lots and that, in any case, it did not have to justify such a choice (para. 7.4).
Going through the applicant’s arguments, the Court confirmed that Legislative Decree no. 50 of 2016 has reinforced the tendency towards the division of the contract into lots, giving rise to an obligation that can be waived only by virtue of specific justification. The derogation from this principle for the sake of protecting competition thus requires, by express and specific regulatory provision, a strengthened motivation.
3. JUDGMENT
The Court indeed disagreed with AMAT Spa argument. It did so on the grounds of Article 51 of Legislative Decree no. 50/2016, para. 1, which, in compliance with EU law, to facilitate the access of micro, small and medium-sized enterprises, rules that contracting authorities shall subdivide contracts into lots (“Contracting authorities shall give reasons for not dividing the contract into lots in the contract notice or letter of invitation”).
Once the Court ascertained that, in the procedure at hand, the factual prerequisites were met for the application of the rule of subdivision into lots (for the purposes set in Article 51) and that according to the uniform interpretation of the case law, the derogation from this principle is subject to a “specific and congruous” motivation, it ruled that, in the present case, the tender documents did not contain any externalization of the reasons on the option to articulate the tender into a single lot. The Court noted that, in the administrative process, the motivation shall precede – and not follow – the measure, in order to protect the good performance of administrative action and the need for delimitation of judicial control, and the principles of equality of the parties and due process. It follows that the reasons of the order cannot be validly integrated in court.
In the case at stake, the Consiglio di Stato considered that the contested notice did not contain any reason regarding the omission of the subdivision of the contract into lots, nor is it apparent from the tender documents from which it emerges, rather that the award has, as its object, a service of dispatch and service of judicial documents, which falls predominantly in the territory of the Province of the appellant, so that the subdivision of the contract into at least two “functional” lots (namely the regional and the national) would appear configurable.
7.9. Ultimately, in the face of the strengthened duty to state reasons laid down in the first paragraph of Article 51, the Administration, in the present case, did not provide any reasoning in the contested acts as to the need to provide for a single tender lot, then linking participation to the possession of a participation requirement which provides for the authorisation to serve judicial documents at national level, even though the subject-matter of the tender procedure concerns, in almost all cases, documents to be served within the Region of Apulia.
The Court concluded by ruling that the contested tender acts were flawed for lack of specific and adequate justification of the choice not to divide the entrustment of the services into separate lots. Therefore, the appeal was dismissed.
MAIN LEGAL ISSUE: in case of postal service for legal notices (ie. delivery of documents with legal certainty), the rule about division into lots is applicable, since there is no reason to justify the choice to have only one provider throughout the national territory. Moreover, the service was intended to be displayed for almost 90% within one Italian Region, so that it would have been reasonable to have at least two lots: one for the region and the other for the rest of Italy.
The failed division into lots also entailed that the technical requirement for the participants to have a postal license of level 1 (i.e., for the entire national territory) while the applicant only had a license of level 2 (i.e. for the regional territory). Therefore, lacking the required license, the applicant was not entitled to present an offer – while if the division into two lost had been applied, it could have participated.
