Decision n. 5499/2022, 1 July 2022, Council of State, sect. V, Italy
Article(s) in Directive 2014/24/EU: Art. 57.4
Topic: Exclusion grounds
Member State: ITA
Court/rev. board: Council of State, sect. V, 1 July 2022, n. 5499
1. IMPLEMENTATION / RELEVANT NATIONAL LEGISLATION
Italian comment by Michele Cozzio
Art. 24, para. 7 (Internal and external planning to adjudicating authorities in public works), legislative decree 50/2016 Code of Public Contracts
Art. 80, para. 5, lett. c-bis, d, f-bis (Exclusion grounds), legislative decree 50/2016 Code of Public Contracts
The Italian legislation (Art. 24, comma 7, legislative decree 50/2016) establishes that anyone who has carried out projects put out to tender cannot be awarded the relevant contracts. The aim is to avoid that the competition for the award of works is distorted by information available to the operator that participates with the designer in the award of the contract. This prohibition, however, is not absolute and a priori, as it can be surpassed if demonstrated that the experience gained through design is not such as to give rise to an advantage capable of distorting the competition.
The judgment follows the procedure, initiated by the administration of Rome, for the award of an integrated contract for the executive planning and execution of works for a school building.
The third-ranked company challenged the award, claiming that the first two ranked companies had benefited from an unlawful competitive advantage due to the involvement of designers previously engaged in the preparation of the procedure by the adjudicating authority. The administrative judge of first instance held that this distortion of competition was well-founded and annulled the award (Regional Administrative Tribunal of Lazio, Rome, section II, n. 10914/2021). The second instance court (Council of State, sect. V, n. 5499/2022), on the other hand, held that the solutions adopted by the administration (having made the same information available to all operators and granting adequate time limits for the preparation of the bids) were fit to prevent any hypothesis of an information advantage. On these grounds, the court overturned the first instance judgment.
The decision is relevant on the prohibition, for those who have carried out projects put out to tender, to be awarded the relevant contracts by specifying the scope of application and the prerequisites for overcoming it.
The clarifications the Council of State made are useful because they specify what behavior administrations can assume to avoid information asymmetry and competitive advantage that could violate the par condicio among participating companies.
Such situations, in fact, may occur when those who participated in the preparation of the projects put out to tender later also participate, with certain enterprises, in the award procedures for the executive planning and execution of the related contracts. In these cases, the advantageous position enjoyed by the designer and the companies he is associated with can be surpassed if the contracting authority makes the same information available to all competitors, also in editable format and, at the same time, if it guarantees participants a reasonable time limit for the submission of tenders.
It shall be avoided, in fact, that the competition for the awarding of the contract is distorted by the greater technical-informative compendium available to the operator participating in association with the designer.