Contracts of the Public Administration – Telematic race – Lists of workings and supplies – Scanning of the relative form instead of the file.pdf uploaded to the system of the lists of workings and supplies – Exclusion from the tender – Legitimacy – Rescue preliminary investigation – Impossibility, Regional Court of Administrative Justice of Trento, Section One, Judgment no. 4 of 08/01/2018

It must be excluded from the electronic tender, pursuant to art. art. 57, legislative decree 18 April 2016, n. 50, the competitor who, instead of using, to send the offer, the file.pdf uploaded to the system of the processing and supply lists, as specified by the letter of invitation, proceeded to the scanning of the form containing the aforementioned lists, compiling it and sending it to the contracting authority, without being able to resort to the preliminary investigation as the detected irregularity regards the formulation of the economic offer and affects the content of the offer, so as to have to be qualified as non-remediable (1).

(1) The Tar clarified, recalling its own precedent in terms (Trga Trento 20 November 2017 No. 305), that the formalism that characterizes the discipline of the tender procedures also corresponds to the need to guarantee the impartiality of the administrative action and a level playing field between competitors, so that only in the presence of an equivocal formulation of the letter of invitation, in the face of a plurality of possible interpretations, can preference be given for what may lead to the participation of the greatest number of candidates, but not when the prescription is univocal and is imposed by the contracting authority under penalty of exclusion, and that the expulsion measure enshrined in art. 57, paragraph 6, legislative decree 18 April 2016, n. 50 for the failure to use the form relating to the list of work and deliveries prepared by the contracting authority satisfies the prevailing requirements of certainty and speed pursued by the administration, due to the type of tender and the performance of the same by computer.

He added that it is precisely the application of the digital signature of the person in charge of the procedure on the “file uploaded to the system” the fulfillment that originates the document “List of workings and supplies” in the original, which must be used by the competitor for the formulation of its own economic offer, so that the document scanned, which does not include the digital signature certificates attributable to the person in charge of the proceeding, can not be assimilated to this document.

Finally, given that the art. 83, paragraph 9 of Legislative Decree no. 50 of 2016 expressly excludes the operation of the preliminary investigation for the essential irregularities related to the economic offer, the Competition Commission has not correctly initiated the preliminary investigation as the irregularity detected concerns the modalities of formulation of the economic offer and goes to affect the content of the offer itself, so as to have to be qualified as unsaleable.

Source Administrative Justice