Contracts of the Public Administration, Exclusion from the tender, Causes of exclusion ex. c) of paragraph 5 of the art. 80 of the public contracts code, List of examples and not exhaustive, Council of State in court, Section Fifth, Judgment no. 1299 of 02/03/2018

The list contained in the art. 80, paragraph 5, lett. c), legislative decree 18 April 2016, n. 50 (remained unchanged after the entry into force of Legislative Decree No. 56 of 19 April 2017) – in the part in which it is classified as a “serious professional malpractice”, for which the contracting authority must demonstrate “by appropriate means” that the economic operator has been guilty, including “significant deficiencies in the execution of a previous contract or concession that caused the early termination, not challenged in court, or confirmed at the outcome of a judgment, or they gave rise to a conviction for damages or other penalties “- is merely simplifying (1).

(1) In the opinion of the Section the list of serious and relevant professional malfeasures contained in lett. c) of paragraph 5 of the art. 80 is merely an example, as can be seen from the possibility of the contracting authority to provide proof “with appropriate means”, both from the incipit of the second engraved (“Among these – (id est, serious professional malfeasance – include: […] “) That precedes the listing.

The law, in addition to identifying, by way of example, serious professional offenses, also aims to ease the burden of the contracting authority to provide proof of it with “adequate means”.

The Section added that “significant deficiencies in the execution of a previous procurement or concession contract” are relevant “[…] even if individually they constitute a serious professional offense or if they are symptomatic of persistent professional shortcomings”, as specified in point 2.2 .1.2 and of the ANAC guidelines n. 6 of 2016/2017; the following point 2.2.1.3 of the same guidelines includes in the listing of significant significant deficiencies, among others, the single non-fulfillment of a contractual obligation or the adoption of incorrect conduct or the delay in compliance.

The existence and the seriousness of the default or of the delay or of the incorrect behavior for the purposes of the exclusion from the competition are demonstrated, by tabulas, and obligate to the exclusion, whenever they have produced the effects typified by the norm; with the clarification – contained in point 2.2.1.1 of these guidelines – which is an adequate means of demonstration (to be assessed by the contracting authority, but not automatically excluded) also the executive resolution or compensation, before it has passed judged.

Such a reconstruction of the scope of the provision, however, does not imply, in the opinion of the Board, an automatic foreclosure of the discretionary assessment by the contracting authority of the seriousness of non-compliance that, although not immediately attributable to the typified, with regard to the effects produced, however qualifiable as “serious professional malfeasance” and are therefore impeding participation in the tender because they make the competitor’s integrity or reliability questionable.

Rather, in such eventuality – that is to say when it excludes from the participation to the competition an economic operator because considered guilty of a serious professional malfunctions not included in the list of the art. 80, paragraph 5, lett. c) – the contracting authority must adequately justify the exercise of such discretion (concerning the seriousness of the offense, not the consequence of the exclusion, which is due if the offense is considered serious) and must first provide the proof of the existence and seriousness of the professional offense contested with “adequate means”.

The Section excluded a contrast of this interpretation with the community principles.

He affirmed that Directive 2014/24 / EU of 26 February 2014, on public procurement, implemented with the new code of public contracts, in art. 57 paragraph 4, in specifying the causes of optional exclusion of a competitor, distinguishes several hypotheses, providing that:

“4. Contracting authorities may exclude, or Member States may require contracting authorities to exclude from participation in the procurement procedure an economic operator in one of the following situations: [… omissis …] (c) if the contracting authority can demonstrate by appropriate means that the trader has been guilty of serious professional malpractice, which makes his integrity questionable; [… snip …]; g) if the economic operator has shown significant or persistent shortcomings in the execution of a substantial requirement under a previous public procurement contract, a previous contract with a contracting entity, or a previous concession contract that have caused early termination of this previous contract, compensation for damages or other comparable penalties; […] “.

Although with the directive two distinct cases of optional exclusion have been outlined, subject to two different probative regimes, the choice made by the Italian legislator that regulated the exclusion due to a serious professional malpractice in terms of compulsory nature and built the figure does not appear incompatible. a genus (almost coinciding with the cause of exclusion identified by Article 57, paragraph 4, letter c) of the Directive) within which it is possible to place the most diverse cases, some of which are exemplified in the same art. 80, paragraph 5 (with inclusion in the list of hypotheses that the Directive has considered separately).

The choice of the Code of public contracts, as well as not contrast with the provision of art. 57, paragraph 4, of the directive (which, moreover, contemplates optional exclusionary assumptions) complies with the principles that can be deduced from recital 101 of the same directive.

In particular, it notes the indication contained therein that the contracting authorities should continue to have the possibility to exclude economic operators who proved to be unreliable, inter alia due to a serious breach of professional duties (with the clarification that “a serious breach of professional duties can call into question the integrity of an economic operator and therefore make the latter unfit to obtain the award of a public contract regardless of the fact that he has the technical and economic capacity for the rest of the contract ” ) and also recognizes the award to contracting authorities of the power to consider that there has been a serious breach of professional duties if, before a final and binding decision on the presence of mandatory grounds for exclusion has been taken, they can demonstrate by any appropriate means that the economic operator has violet his obligations “.

Consistent with the jurisprudence of the Court of Justice formed on the previous directive of 2004/18 / EU of March 31, 2004, art. 45 (see, for all, the judgment of 14 December 2016, in case C-171/15), recital 101 concludes with explicit reference to the principle of proportionality, in order to exclude any automatism towards the contracting authority, allowing it to exercise , albeit within defined limits, its discretionary powers in assessing the existence of the fiduciary element in the contractual counterparty.

Source Administrative Justice