The TAR (Administrative Regional Court) of Lazio with judgment no. 310237 of 6 March 2017 ruled on formal shortcomings of a tender submitted in a public call for tenders.
It was an open procedure for the award of a service by the municipality of Rome (Roma Capitale), whose tender conditions included the requirement that the bid had to be accompanied by a 16 Euro stamp duty.
The tender commission observed that the stamp duty was missing on one of the submitted bids so the concerned operator was asked to see to its regularisation on the basis of the so-called soccorso istruttorio (a procedure whereby the tenderer is given an opportunity to remedy shortcomings in its tendering documentation).
The tenderer sent a declaration by certified email certifying its exemption from the stamp duty, since it is a non-profit organization.
However, the contract awarding Authority proceeded to exclude the tenderer by stating that such declaration had not been received within the prescribed time limit.
The excluded tenderer challenged the decision and ‒ in granting the application ‒ the TAR of Lazio clarified that the absence of the stamp duty should not have meant the exclusion from the procedure, nor even the soccorso istruttorio, but simply the payment of the tax under Italian Presidential Decree 642/72, which requires public officials to accept the acts even when without stamp duty, establishing that their regularisation is possible.
The TAR specified that non-compliance with the tender requirements or with the invitation letter concerning the methods for submission of the bids may imply the exclusion from the procedure ‒ in the absence of a clear provision on the point ‒ only when the requirements concern a particular interest of the contract awarding Authority or when they guarantee the equal treatment of the tenderers, and this was not the case.
(Bologna Office – Andrea Giardini – 0039 (0)5 12750020)
