Administrative, Contracts of the Public Administration, Exclusion from the tender, irregular Durc, Cons. St., sect. V, sentence 26 April 2018 n. 2527

Contracts of the Public Administration – Exclusion from the tender – Irregular durc – Immediate exclusion – Irregular irregularity of an auxiliary company – Article 89, paragraph 3 of Legislative Decree no. 50 of 2016 – Regularization of the auxiliary company – Limits.

Compensation for damages – Contracts of the Public Administration – Damage of favorable chance loss – Quantification criterion.

Pursuant to art. 89, paragraph 3, legislative decree 18 April 2016, n. 50, the principle, according to which the contracting authority that, upon verification of the possession of the declared requisites, receives from the social security agency communication of irregular durc is required to exclude the operator from the procedure, revoking any award made, without proceeding to the prior call for regularization, this applies in the case of contributory irregularities of the competing company, since it can not operate in the case of irregularities of auxiliary companies for which the competitor intends to use (1).

In case of irregularity in the contributory position of the auxiliary (reason for mandatory exclusion pursuant to Article 80, paragraph 4 of Legislative Decree 18 April 2016, No. 50), the contracting authority can not impose on the economic operator, instead of the replacement of the auxiliary as per art. 89, paragraph 3, legislative decree 18 April 2016, n. 50, regularization (2).

The damage deriving from the non-awarding of a public tender – which must be reimbursed to the extent of the c.d. positive interest, which includes both the loss of income and the damage c.d. curricular – but from a favorable loss of chance it must be compensated by defining the percentage measure which, in the given situation, presented the probability of awarding the chance – taking into account the stage of the procedure in which the illegitimate act was adopted and as then it would have evolved (3).

(1) It has clarified the Section that to the immediate exclusion from the race in case of irregular durc of the auxiliary company precludes the rule dictated by the art. 89, paragraph 3, legislative decree 18 April 2016, n. 50, for which: “The contracting authority shall verify, in accordance with Articles 85, 86 and 88, whether the entities the capacity of which the economic operator intends to exploit satisfy the relevant selection criteria or if there are grounds for exclusion pursuant to Article 80. It requires the economic operator to replace those who do not meet a relevant selection criterion or for which there are mandatory grounds for exclusion “.

The provision constitutes a novelty of the new regulatory body of public contracts of 2016, incorporating the provision of art. 63 dir. 24/2014 / EU, for which: “The contracting authority may impose or be obliged by the Member State to require that the economic operator substitutes a person for whom there are non-mandatory grounds for exclusion” with the extension of the scope of operation to all grounds for exclusion pursuant to art. 80.

Previously, under the validity of the Code of public contracts pursuant to Legislative Decree 12 April 2006, n. 163, the replacement was allowed only in the case of temporary grouping of companies for the reasons provided for therein (Article 37, paragraph 19, Legislative Decree No. 163 of 2006) and only in the executive phase (Cons. V, 20 January 2015, No. 169).

Article. 89, paragraph 3, cit., On the other hand, allows (on the contrary, imposes) the substitution also in the context of the relationship between companies arising from the stipulation of a contract of availment and also in the phase preceding the execution of the contract.

The replacement of the auxiliary during the procedure is patently deviating from the principle of the subjective immodability of the competitor during the procedure (as well as those he intends to use: and, in this way, the same offer), but responds to the estimated need superior to avoid the exclusion of the operator for reasons not directly attributable to him and, in this way, even indirectly, stimulate the recourse to the transfer: the competitor, in fact, can take into account the fact that, if the the auxiliary does not meet the requisite requisites, he can proceed with its substitution and will not be excluded for this sole fact.

(2) Objection to the regularization objection is the same reasons as Cons. St., A.P., 29 February 2016, n. 6, held that the economic operator who participated as a single undertaking was impeded by the regularization of contributions and, in particular, also regardless of the nature of the invitation to regularize (which the sentence clearly defines: “an institution unrelated to the discipline of awarding and execution of public contracts “), the principle of self-responsibility and equal treatment. If, in fact, as already mentioned, the legislative innovation is intended not to excessively penalize the economic operator who has relied on the skills and requirements of a third party, and who, without fault, has relied on a subject and then inadequate result, however, the same requirement can not be applied to the latter. To this, in short, the negative consequences of his conduct must necessarily be reported, or that he can not derive economic benefits from participation in the execution of a public contract.

The principle of equal treatment applies not only in relations between competing economic operators, but also between them and their auxiliaries. Therefore, the latter as the former must “bear (re) the consequences of errors, omissions and, a fortiori, of the falsehoods committed in the formulation of the offer and in the presentation of the declarations” (thus, again, according to the Plenary Meeting 29 February 2016, No. 6, which, in turn, refers to the Plenary Meeting February 25, 2014, No. 9).

(3) The Section has clarified that compensation for loss-of-chance damage expresses a pattern of capital reintegration regarding a good of life connected to a subjective situation that, when it replaces a specific reintegration as in public contracts, rests on the the fact that an economic operator who participates in a public tender procedure, for this reason alone, can be considered a carrier of an abstract and potential chance to win the contract (as well as anyone, in general, participate in a comparative procedure for the possibility to achieve the good or the utility put forward for the competition). The initial and virtual chance, which moves from being in power the same for all competitors, then changes to materialize and becomes measurable in terms: not being a competition of chance but of professional contention in which it is necessary to show titles and skills, it becomes effective and increases or decreases in the course of the procedure until it is concentrated in the highest dimension for the first classified operator at the time of formulating the final ranking, gradually fading away from the others.

Therefore, if, during the procedure, unlawful conduct by the administration thwarted the normal affirmation of the awarding chance, the legitimate interest of the economic operator is harmed and – if the good of the life to which the interest is oriented is also precluded – he owed the compensation of the damage to the estimable measure of his lost chance.

The percentage quantification of the represented injury of chance identifies the effective size of a loss of profit; moreover, the operator taking part in the tender is not the current owner of a patrimonial element that is damaged by the administrative activity, but of a subjective situation that is instrumental to the achievement of a future utility.

The future utility – being part of the contract and deriving legitimate profit from it – is the good of life that is denied to him by the illegitimate action of the administration. The chance in probabilistic terms relates to the concrete circumstances, attached and tested, that detect to define, within the limits of the presumable, the real probability that the economic operator had to be chosen and thus to achieve that utility: in a “dynamic” reconstruction “Of the evolution of the story and not” static “(Cons. St., section V, 8 October 2014, number 5008, id 17 July 2014, No. 3774).

Source Administrative Justice