Administrative, Public Administration Contracts – Procurement Rite – Announcement – Endorsement – SOA Certification, Cons. St., A.P., judgment of 16 October 2020 n. 22
Articles 83, paragraph 8, last sentence, 84 and 89, paragraph 1, of the legislative decree n. 50 of 2016.
The plenary meeting pronounces on the nullity of the clauses of the announcement and on the nullity of the subordination of the SOA attestation to the production of the SOA attestation of the subsidiary company.
Partial nullity of the clause.
Public Administration Contracts – Use – SOA Certification – Subordinated to the production, during the tender, of the SOA certification also from the auxiliary company itself – Nullity of the forecast.
Public Administration Contracts – Use – SOA Certification – Subordinated to the production, during the tender, of the SOA certification also from the subsidiary company itself – Partial nullity.
Administrative process – Procurement procedure – Announcement – Illegitimately excluding clause – It is void – Challenging – Not necessary – Appeal subsequent acts – Necessity.
The clause of the tender specification that makes the validation of the SOA certification subject to the production, during the tender, of the SOA certification also of the same subsidiary company is in contrast with Articles 84 and 89, paragraph 1, Legislative Decree no. 50 of 2016 and is therefore void pursuant to art. 83, paragraph 8, last sentence, of the same legislative decree (1).
The nullity pursuant to art. 83, paragraph 8, legislative decree n. 50 of 2016 of the clause of the tender disciplinary which makes the use of the SOA certification subject to the production, during the tender, of the SOA attestation also of the same auxiliary company configures a hypothesis of partial nullity limited to the clause, to be considered not affixed , which does not extend to the entire provision, which retains an authoritative nature (2).
In the presence of the nullity of the exclusionary clause contra legem of the tender notice, there is no burden for the company to propose any recourse because this clause – as ineffective and unproductive in effect – must be understood as ‘not on purpose’, at all effects of law, except to challenge in the ordinary terms the subsequent acts that apply (also) the null clause contained in the previous act (3).
The matter had been referred by Cons. St., Sec. V, March 17, 2020 n. 1920.
Source Administrative Justice
