Administrative Process – Procurement Rite – Super Accelerated Rite – Appeals for immediate admission of competitors – Publication of procedural documents – Necessity, Cons. State, Section III, January 26, 2018, Judgment no. 565
JUDGMENT
on the appeal number of general register 4870 of 2017, proposed by … .. s.r.l.,
versus
… ..
towards
… …..;
Region … ..- Subject Aggregator, not constituted in court;
… .s.p.a., Not constituted in court;
for the reform
of the sentence n. 843 of 21 June 2017 by T.A.R. for Tuscany, section III, rendered between the parties, which excluded the offer of … … s.r.l., today’s appellant, from the restricted procedure for the supply of solutions …. of wide use, in relation to lot n. 281, subloted c), d), g) and i).
having regard to the appeal and the related attachments;
having regard to the deeds of constitution in court of the appellate ….. and of the counter-party ….. s.p.a.
seen the defensive memories;
having regard to all the acts of the case;
rapporteur in the public hearing of January 16, 2018 the Director
considered and considered in fact and law the following.
FACT AND RIGHT
1. The Region …., Through the determination of the Director of the Department of Acquisition of Goods and Services n. 1204 of 11 October 2016 and making use of today’s appellant … Agency for Regional Administrative Technical Services (hereinafter, for the sake of brevity, …), has called, pursuant to art. 55 of the d. lgs. n. 50 of 2016, a Dynamic Acquisition System (S.D.A.) for the supply of … necessary to the Health Authorities of the Region, for a presumed total amount of € 5 billion (including VAT) and for the period of 48 months.
1.1. The aforementioned determination acknowledged the need to carry out additional tenders among those admitted to the dynamic system for the assignment of supply contracts.
1.2. Article. 11.2 of the specifications, entitled “Technical-qualitative characteristics for solutions …” provided that “plastic bottles […] must have a free space to allow the possible addition of … ..and have readable measurement scales easily even upside down, preferably also with an indication of 50 ml, otherwise at least every 100 ml ».
1.3. On November 17, 2016, at the request of some participants, the contracting authority made some clarifications regarding the art. 11.2 of the specifications.
1.4. The questions posed were stressed by the difficulty in positioning the measurement scales, due to the characteristics of their own polyethylene containers, but nevertheless the contracting authority replied: “The specifications of the specifications are confirmed”.
1.5. With the determination n. 262 of 22 February 2017, the first call for tenders was launched, in the form of a restricted procedure called ….., through the Dynamic Acquisition System (SDA) for the supply of ……, required by the Regional Health Authorities, for a total economic picture of € 4,959,078,051.81 (excluding VAT), including any contractual changes and for an estimated total amount based on the auction of € 3,636,657.23.00 (including VAT), for the period of 48 months, and the tender documents (invitation letter and offer form) were approved at the same time.
1.6. The award criterion adopted, resulting from the specification and the letter of invitation, was determined in that of the lower price pursuant to art. 95 of the d. lgs. n. 50 of 2016.
1.7. The letter of invitation specified that the offer should have covered at least 80% of the formulations put forward for each lot.
1.8. On March 7, 2017 the provisional award was announced in favor of … s.r.l., today’s appellant, of lot n. 281, concerning “solutions … of wide use”, and of the relative sublights from letter a) to letter j).
1.9. On 9 March 2017 …. spa, appellant at first instance and today appellate, contested the award placed in favor of …. srl, underlining how the 500 ml bottles offered by the latter were not equipped with the measurement scale envisaged by the aforementioned art. 11.2 of the specifications.
1:10. Following this dispute, the contracting authority requested clarification from … LTD which, with the note of 10 March 2017, confirmed the difference between the measurement scale on the bottles offered and that provided for by art. 11.2 of the specifications.
1:11. With the determination n. 386 of 15 March 2017, the final award was made for … s.r.l.
1:12. With the subsequent determination n. 526 of 31 March 2017, 5% of lot n. 281 was awarded to … s.p.a., by virtue of the exclusive characteristics of the bags offered by this company, while the rest was confirmed in favor of … Italia s.r.l.
2. Against the final adjudication and the other tender documents … s.p.a. has appealed before the T.A.R. for Tuscany, requesting the annulment of the aforementioned deeds and, consequently, the exclusion of … Italia s.r.l. from the tender and the awarding of the same in its favor, complaining, in essence, the non-compliance of the 500 ml bottles offered by the same … to the specifications established by art. 11.2 of the specifications.
2.1. It was constituted in the first degree of the judgment …. Italy s.r.l., supporting the thesis of the optional nature of the aforementioned requirement and objecting to the delay of the appeal proposed by … s.p.a.
2.2. ESTAR also appeared in court, which supported the merely preferential nature of the requirement.
2.3. With the sentence n. 843 of 21 June 2017 the T.A.R. for Tuscany he accepted the appeal of …, annulling the contested deeds.
3. Against this sentence …. s.r.l. appealed, formulating, in accordance with what was raised at first instance, two grounds of appeal which will be examined below, and requesting, after suspension, the complete reform of the decision.
3.1. It was established …. s.p.a., which called for the rejection of the appeal, substantially re-proposing the arguments made at first instance.
3.2. The appellation was constituted ……, adhering to the observations made by … .s.lr.l. and asking for the reform of the contested sentence.
3.3. With the ordinance n. 3585 of 1 September 2017, the Section rejected the precautionary petition formulated by … s.r.l.
3.4. Finally, in the public hearing of January 16, 2018, the Board, after hearing the defense of the parties, held the case in decision.
4. The appeal of … .. s.r.l. is unfounded on both grounds and must be rejected.
4.1. According to the logical-legal order of the issues, the Board believes that it is necessary to analyze in advance the question of the delay in the appeal brought by … spa, contained in the second ground of appeal (pp. 14-16 of the appeal), since the acceptance of this complaint would determine in limine litis the inadmissibility of the first instance appeal.
4.2. In this regard, the appellant alleges that … spa, having notified the appeal on April 13, 2017, would not have complied with the 30-day expiration period, and considering which dies a quo on February 3, 2017, as already alleged at first instance, either considering the day 7 March or the day 9 March 2017, as specified in the appeal deed.
4.3. The present plea, as stated, is unfounded.
4.4. The date of February 3, 2017 refers to the admission of … .a s.r.l. to the Dynamic Acquisition System and, according to the appellant, ….. s.p.a. he should have challenged the admission decision within 30 days pursuant to art. 120, paragraph 2-bis, c.p.a.
4.5. In this regard, the Board considers that the considerations carried out by the T.A.R. for Tuscany, according to which, pursuant to the provision cited above, the burden of appeal of the other admission is reasonably subordinated to the publication of the procedural documents, because otherwise the company would be forced to propose an appeal “in the dark”.
4.6. In the present case, for the purposes of admission, the companies had not had to submit any technical documentation and, therefore, the characteristics of the products offered by … s.r.l. and furthermore, as pointed out in the defendant’s defense brief, the same … could have changed the bottle labels pending the application of the restricted procedure.
4.7. Nor is it proven, moreover, that … s.p.a. were otherwise aware of the technical characteristics of the product offered by …. s.r.l.
4.8. The date of 7 March 2017, in turn, refers to the award proposal in favor of today’s appellant, but in this regard not only can it be noted that art. 120, paragraph 2-bis, c.p.a. forbids to challenge the proposed award, similar to the old provisional award, but also as before the introduction of this provision the jurisprudence considered the appeal of the merely optional provisional award (see, formerly plurimis, Cons. St., sez V, 17 February 2016, n.631, Cons St., Section V, 25 July 2014, No. 3960).
4.8. Finally, the date of 9 March 2017 is attributable to the complaint made by … .s.p.a. against the award made in favor of … s.r.l., but was put into being only assuming that the same … had offered their own standard bottles, without the scale of measurement required by art. 11.2 of the specifications, so that, hypothetically, this would have been able to offer a product different from the standard one.
4.9. It is therefore only with the determination of final award n. 386 dated 15 March 2017, to which the minutes of March 10, 2017 were attached, showing the exact technical characteristics of the offer of ….. s.r.l., which … s.p.a. has had a certain knowledge of the discrepancy of the product concretely offered by the same ….
4.9. It follows that it is only in 15 March 2017 that the dies a quo must be identified for the commencement of the deadline for lodging an appeal.
4.10. Therefore, for the reasons stated above, the appeal is timely and the question of inadmissibility raised by the appellant with the second ground in question must be rejected.
5. This clarified in limine litis, therefore, it is now necessary to proceed with the examination of the first ground of appeal, which criticizes the reasons that led the first judge to decide the exclusion of today’s appellant from the competition (pp. 4- 14 of the appeal).
5.1. With this complaint, in fact, ….. s.r.l. assumes the erroneous decision of the first degree, claiming that the T.A.R. for Tuscany it would have provided an incorrect interpretation of art. 11.2 of the regulatory documents.
5.2. The first instance judge, in fact, erroneously qualified the measurement scale requirement for every 50 ml or 100 ml, provided for in the aforementioned article 11.2, as necessary and not optional, thus annulling the award of … s.r.l. for lack of conformity of the product offered by it.
5.3. The second ground of appeal, as stated above, must also be rejected.
5.4. First of all, reference should be made to the wording of the art. 11.2 of the specifications, which, under the heading “Technical-qualitative characteristics for infusion solutions and blood substitutes”, provides that “the plastic bottles must […] have a free space to allow the possible addition of drugs and have scales of measurement readable also easily to inverted bottle, preferably also with the indication of the 50 ml reference, otherwise every 100 ml ».
5.5. Despite the prediction does not appear perfectly formulated, the interpretation more faithful to the letter of the art. 11.2 is the one that recognizes a merely preferential character only on the measurement scale with an indication of 50 ml, whereas, conversely, the indication of 100 ml is to be considered as a necessary requisite of the product to be supplied.
5.6. In this sense, they use the verb “must”, an expression of the binding nature of the art. 11.2, of the adverb “preferably”, referred exclusively to the indication of 50 ml, and of the expression “at least every”, which confirms the obligatory character of the indication only every 100 ml.
5.7. The deductions formulated by …. s.r.l. (see, in particular, also the observations referred to in the defense statement filed on 28 December 2017, pp. 4-5), because the use of the comma, certainly not impeccable on the grammatical level, can be understood in the light of a reading overall sentence, paying particular attention to the aforementioned phrase “at least every”.
5.8. Even less decisive seems to be the use of the term “scale” in the plural, as the non-use of the singular form can be justified in a normal phenomenon of linguistic attraction exerted by the plural subject of the sentence (“the flacons”).
6. The interpretation advocated by the appellant also clashes at the logical-legal level with the choice, adopted by the contracting authority, to award the tender using the criterion of lower price, as this criterion would not allow either favorably or unfavorably to be considered. the presence in the offered product of merely preferential and optional requirements, so that the inclusion in the specifications of these requirements, which the appellant assumes as eventual, would not find justification.
6.1. Moreover, in support of the interpretation accepted here, the clarification provided by ….. on 17 November 2016, by which the specifications of the specifications were confirmed, despite the doubts expressed by some competitors, were also confirmed.
6.2. The considerations made by …. s.r.l. on the systematic placement of the art. 11.2 of the specifications, as this position, as correctly underlined also by the counter-party in his own memory, allows to affirm the binding nature of the provisions contained in said article.
6.3. The fact is that the art. 11.2 (“Technical-qualitative characteristics for infusion solutions and blood substitutes”) seems to be closely linked and in perfect harmony with the articles 11 (“Specific supply requirements and product target status”) and 11.1 (“Product requirements”) that precede it.
6.4. These provisions, also in light of a careful reading of their content, seem to constitute a unitary system, aimed at identifying the essential characteristics of the product subject to the supply contract.
6.5. Furthermore, also an atomistic analysis of the art. 11.2 highlights the unsustainability of the thesis advocated by the appellant, as this provision contains an extensive list of technical characteristics, by virtue of which «the plastic bottles must […] be made of plastic material, free from PVC, meeting the characteristics described in FU [Official Pharmacopoeia] in force […] to be impermeable to air and water vapor, resistant to traction and pressure […] to possess a cap made of elastomeric material protected until being […] latex free […] ».
6.6. It is evident that these characteristics, also contained, is reiterated, in art. 11.2, are undoubtedly essential and that it would be unjustified, even considering the other elements previously highlighted, to believe that only the reference to the measurement scales is merely preferential and non-binding.
6.8. In this regard, the reference by the appellant to the admission of companies offering products without the aforementioned measurement scale is also irrelevant, since it is not correct to infer the non-compulsory nature of a requirement only by the fact that some companies do not have complied with this requirement and have been, however, illegitimately admitted.
6.9. The considerations just carried out, moreover, are in line with the consolidated orientation of this Board, which constantly reaffirms that the requirements of the calls are mandatory and also binds the Administration, which, therefore, can not disregard these provisions, constituting the so-called lex specialis of the tender or of the competition, and, even if they are illegitimate, can not be disregarded (see, ex plurimis, Cons. St., Section III, March 1, 2017, No. 963; Cons. V, 23 June 2014, No. 3150, Cons St., Section V, 27 April 2011, No. 2476).
6.10. Furthermore, with particular reference to the clarifications provided by the contracting authority, which in the case in question, as highlighted above, were correctly limited to clarifying the scope of art. 11.2, the jurisprudence recognizes to them a purely interpretative and not modifying function of the requirements of the announcement (see, inter multas, Cons. St., section III, 10 May 2017, No. 2172; Cons. St., section III , 13 January 2016, No. 74).
6.11. For these reasons, it is reiterated, the admission of some companies that have not supplied products with the measurement scale indicated in art. 11.2 can not allow to exclude the mandatory nature of said requirement or to derive the sure legitimacy of such admissions, which, in any case, are not the subject of the present judgment.
6.12. What is relevant, therefore, is only the preceptive content of the aforementioned art. 11.2 of the specifications.
7. In light of the considerations made so far, therefore, the Board must reaffirm the binding nature of the art. 11.2 of the specifications, also in the part in which it foresees that the plastic bottles must be equipped with a measuring scale «at least every 100 ml».
7.1. It should be noted that this reconstruction does not conflict with the jurisprudential orientation, referred to by the appellant, which requires preferring the interpretation of the lex specialis which is more respectful of the principle of favor participation and of interest in the broader competitive confrontation (see in this sense, Cons. St., section IV, 14 March 2016, No. 1015, Constable St., Section III, 14 January 2015, No. 58).
7.2. The aforementioned rulings, in fact, refer to this hermeneutical criterion with reference to situations of objective uncertainty of the clauses of the notice, a circumstance which, in the light of the considerations, is not recognizable in the present case, so that the principle of favor partecipationis could not be used for to surreptitiously modify the content of the art. 11.2 of the specifications.
7.3. Finally, it should only be added here, the appellant’s observation that the lack of the requirement in question would not lead to exclusion is not shared, as this consequence is not expressly foreseen.
7.4. In this regard, moreover, it can be noted that the technical specifications envisaged in the notice, among which certainly falls within the measurement scale described in art. 11.2, allow to accurately reconstruct the product requested by the Administration and to identify, in this way, the object of the contract in its essential function.
7.5. For these reasons the jurisprudence of this Council consistently states that “the offer must be in fact compliant with the technical characteristics provided for in the tender documents for the goods to be supplied from the beginning, since differences, even partial ones, result in a “Aliud pro alio”, which justifies the exclusion from the selection “(Cons St., Section V, 5 May 2016, No. 1818, Constable St., Section V, 5 May 2016, No. 1809; St., Section V, 28 June 2011, No. 3877).
7.6. Therefore, for the purposes of exclusion, there is no need for an express provision to this effect, as it is sufficient to confirm the discrepancy of the offer with respect to the technical specifications required by the lex specialis, which have an essential value for the Administration.
7.7. Furthermore, it is hardly necessary to point out that the specification contained in art. 11.2 of the specifications, subject to dispute, is perfectly compliant with the provisions of Articles 68 and 83 of the d. lgs. n. 50 of 2016, since it does not involve undue restrictions of competition in this matter, unlike what the appellant assumes by wrongly recalling the provisions of Legislative Decree no. lgs. n. 219 of 2006, and is relevant and proportionate to the subject of the contract.
7.8. It follows that, being more than 30% of the bottles offered by …. s.r.l. different from the specifications prescribed by art. 11.2 of the specifications, this fact, ascertained at first instance and not contested in the present degree of appeal, the offer is not able to reach the coverage of 80% of the formulations requested by the letter of invitation and correctly, therefore , the first judge decreed the expulsion from the procedure.
8. In light of the considerations, the appeal of … ..s.r.l. it must be rejected in its entirety on both grounds, thus confirming the contested judgment, which excluded it from the tender, with reference to lot n. 281, for the ascertained, and incontestable, non-conformity of the offer with respect to the technical specifications as per art. 11.2 of the specifications.
9. The expenses of this grade of judgment, however expected, the technical complexity of the issues examined, can be entirely compensated between the parties.
9.1. It remains definitively charged to the appellant, given its loss, the unified contribution expected for the proposition of the encumbrance.
The Council of State in the courts (Third Section), definitively pronouncing on the appeal, as proposed by …. s.r.l., rejects it and, for the effect, confirms the sentence under appeal.
Compensation for the present grade of judgment is entirely made up between the parties.
Order this sentence to be carried out by the administrative authority.
Source Administrative Justice
