Decision n. 165, 4th March 2024, TAR Lombardia, sec. II, Italy
Article(s) in Directive 2014/24/EU: Recital 1; Article 18
Topic: Cross-border interest in contracts under the EU threshold
Member State: IT
Court/rev. board: Regional Administrative Tribunal (of Lombardia - Brescia)
1. IMPLEMENTATION / RELEVANT NATIONAL LEGISLATION
Art. 48, para. 2, Art. 54, Legislative Decree n. 36/2023 (new Public Contracts Code) & Art. 97, para. 8, Legislative Decree n. 50/2016 (former Public Contracts Code).
2. FACTS
This judgment illustrates the methods and criteria for establishing the existence of a certain cross-border interest which, according to a well-established case law of the CJEU, triggers the application of the TFEU principles to the award of the contract. The case concerned a negotiated procedure for the procurement of works for the reclamation and demolition of an area located in the region to be awarded on the lowest price criterion. The tender documents provided for the automatic exclusion of abnormally low tenders where the number of admitted bids is five or more – as in accordance with Art. 54, para. 1, of the new Italian Public Contracts Code (Legislative Decree 36/2023), requiring indeed the automatic exclusion of abnormally low tenders in below the EU threshold contracts in case at least five tenders have been submitted, thereby excluding the need to provide the concerned tenderer with the possibility to explain the low value of its tender. The application of this mechanism led to the automatic exclusion of the applicant, who had submitted an abnormally low tender.
The applicant thus challenged the award on the ground that it had infringed Art. 54, para. 1, of the new Italian Public Contracts Code. They argued that the contracting authority had misapplied the rules on the automatic exclusion of abnormally low tenders provided for [in the tender documents] and argued that the aforesaid provision ‘contains an insufficiently high threshold for the operation of the automatic exclusion mechanism’ and that, therefore, doubts arose on the compatibility of Art. 54 of the Code with the EU law as the contract at hand was valued only about EUR 100.000 below the EU threshold. In other words, the exclusion could not have been automatic because of the existence of a certain cross-border interest, confirmed by the value of the contract, by the complexity of the operational plan, and by the geographic collocation of the works. The applicant also claimed that the tender documents were not in line with the National Anti-Corruption Authority (ANAC)’s guidelines n. 4, imposing the verification of the existence of the cross-border interest through a concrete assessment of the contract’s circumstances.
3. JUDGMENT
After highlighting that the law does not provide a definition of the relevant notion, the Court established that the existence of a certain cross-border interest (with the consequent obligation to use the ordinary exclusion procedure under the threshold) has as its primary symptomatic index the value of the contract (especially if that is close to the EU threshold). The Court recalled the CJEU’s case law on the various symptomatic indexes which are suitable for indicating the existence of the interest (including, for instance, alongside the amount of the contract, the location of the works in a place that is likely to attract the interest of foreign operators, the technical characteristics of the contract, the presence of borders-crossing urban centers situated on the territory of member states, and so on). With respect to these criteria, the economic size of the contract is undoubtedly not only the main criterion, but also the parameter on whose basis the probative impact of the other symptomatic elements present in the case can be assessed. In the case at hand, not only the value was very close to the EU threshold, but the works were to be performed a few hundred kilometers from the borders and presented some complication requiring high specialization from the contractor liable to attract foreign bidders. After reporting the above-mentioned elements, the Court emphasized that they make the performance at stake highly uncertain as to its subsequent developments. These circumstances “require a high level of efficiency and corporate organization together with a relevant capacity of coordination with public authorities”.
The Court thus concluded that the contracting authority had wrongly not considered the cross-border interest of the contract and therefore unlawfully excluded the applicant without giving it the opportunity to explain its low tender.
