On 11.06.2014 the Court of Justice of the European Union filed a judgment (Case C-42/13) concerning the request for a preliminary ruling by the Regional Administrative Court (TAR) of Lombardy on the interpretation of Article 45 of Directive 2004/18 / EC on the coordination of procedures for the award of public works contracts, public supply contracts and public services contracts (implemented in Italy by Legislative Decree no. 163/2006).
The case stems from the exclusion of a newly-formed joint venture formed by Cartiera dell’Adda and Cartiera di Cologno Monzese SpA (henceforth CCM) from the award procedure of a tender launched by CEM Ambiente SpA, on the ground that the statement certifying the absence of criminal proceedings against the person designated as CCM’s technical director was not submitted with the joint venture’s bid, as required by Article 38 of Decree n. 163/2006.
It should, however, be pointed out that -after having been informed of the exclusion- the bidder sent CEM Ambiente a statement certifying the lack of any impeding cause pursuant to art. 38 of the Public Contracts Code, as well as the incorrect classification as technical director of a person who was actually only a member of CCM’s board of directors. Given the lack of response by CEM Ambiente, the joint venture filed an application with the TAR in order to obtain the cancellation of the decision regarding the exclusion from the award procedure. By means of judgment dated 25 May 2011, the TAR granted the application, but at the same time rejected the request aimed at obtaining the award of the contract.
The TAR’s decision was appealed by CEM Ambiente before the Consiglio di Stato; Cartiera dell’Adda then requested the implementation of the judgment before the referring Court.
With a decision dated 31 March 2012, the Consiglio di Stato upheld CEM Ambiente’s appeal, taking the view that failure to submit the statement in question had to lead to the bidder’s exclusion from the selection procedure, at least in cases where (as in this case) a lex specialis provides for the exclusion from the award procedure in case of failure to submit a required statement.
In the proceedings relating to the implementation, the TAR referred to the Court of Justice the question of whether the impossibility for an undertaking participating in a tender procedure to remedy the failure to annex such a statement, after having submitted its bid, is contrary to EU law.
The Court of Justice stated that the contracting authority must “comply strictly with the criteria which it has itself established” (paragraph 42). In the present case, according to the Court, the documents of the award procedure clearly showed that, on the one hand, the «sworn statement», pursuant to Article 38 of Decree. N. 163/2006, concerning the person designated as the technical director of the tenderer, should be annexed to the bid under penalty of exclusion from the tender procedure and, on the other hand, that it was only possible to remedy “merely irregularities which were purely formal and not decisive for the assessment of the bid”. In particular, according to the Court, “in so far as the contracting authority takes the view that that omission is not a purely formal irregularity, it cannot allow the tenderer subsequently to remedy the omission in any way after the expiry of the deadline for submitting bids”. (paragraph 45).
In light of the above, the Court considered legitimate the decision to exclude the joint venture from the procurement, stating how this decision, although rigorous, is intended to ensure the principle of equal treatment and the obligation of transparency to which the contracting authorities must abide under Article 2 of Directive 2004/18.
Finally, it should be noted that this issue seems to have been overcome thanks to the recent amendments made to Article. 38 of the Public Contracts Code. In particular, the new paragraph 2-bis (inserted by art. 39, para 1, DL June 24, 2014, n. 90, converted with amendments by Law August 11, 2014, n. 114) accepts the possibility of remedying “the lack, incompleteness and any other essential irregularity of the elements and of the statements referred to in paragraph 2” art. 38 Legislative Decree no. 163/2006 with the payment of a financial penalty in favour of the contracting authority.
A cura dell’avv. Andrea.Giardini – andrea.giardini@studiozunarelli.com
