The recent ruling n. 76 of 13 January 2016 of the Consiglio di Stato upheld the appeal filed against the adjudication of a tender in favour of a RTI (temporary grouping of companies), due to the absence, among other things, of the requirements relating to the regular contributions of one of its companies.
The peculiarity of the examined case lies in the fact that the loss of the regular contributions requirements had been temporary and was ascribable to a company, which in the mean time was no longer taking part in the procedure.
A RTI consisting of two companies had taken part in the procedure ‒one as agent and the other as principal‒ and both, however, had sold the business unit during the tender, so that the disputed award had been granted to the RTI consisting of the two transferee companies.
The original principal had also lost the regular contribution requirements in a period prior to the sale of the business unit and on the date of the award of the contract the transferee company regularly held such requirements.
The administrative court of first instance had disregarded the complaint concerning the absence of the requirement of regular contributions of the RTI, on the grounds that the principle of continuation of the participation requirements does not apply in the event of transfer of business unit during the tender (of course, when the transferee company proves to meet the provided requirements), on the one hand, and tolerates limited interruptions, on another hand, provided that, however, the competitor has the requirements during the key moments of the procedure and, that is, during the phases of the filing of the application, of the verification of the requirements and of the award.
However, the Consiglio di Stato has come to the opposite conclusion, by referring to an important Administrative Law decision (Adunanza Plenaria, decision n. 8, 20, July 2015), and has confirmed the well-established case law, according to which the candidates must meet the general and special requirements not only on the closing date for the application submission, but also for the whole duration of the procedure until the actual award of the tender and the conclusion of the contract and for the whole performance of the same, without interruption.
According to the Consiglio di Stato, the fact that the loss of the requirements is ascribable to a company which has since no longer taken part in the procedure is also completely irrelevant, given that, in the event of a succession of two companies during the procedure, a strict application of the principle of continuity of the compliance with the requirements imposes the verification of the persistence of their entitlement upon all parties that have succeeded within the same procedure, in the same competitor position and, therefore, in this case, upon the principal company, as the original participant and predecessor of the transferee principal company.
(Bologna Office – Chiara Iannizzotto – 0039(0)51 2750020)
