Public Contracts Code, Contracts under Threshold, Principle of Rotation of Invitations and Reliefs, art 36 dlgs n. 50_2016, Council of State, Section Six, judgment of 31.08.2017 n. 04125/2017

The State Council in court, in partial reform of Judgment no. 454 of 2017 of the Regional Administrative Court for Tuscany, has ordered the annulment of the award, since no further procedural activity is required by the Administration to identify the new successful tenderer, since it is suffcient to move the ranking in favor of the second ranked.
It observed the following: Art. 36 of Legislative Decree no. 50 of 2016 stipulates that the assignment and execution of works, services and supplies of less than the thresholds referred to in Article 35 shall take place in accordance with the principle of the rotation of calls and credits and in order to ensure the effective opportunities for micro, small and medium-sized enterprises. ”
In particular, the provision confers on the stations the power to make use of the ordinary procedures for the checks in question or to proceed in the following manner: ‘(b) for grants of a value equal to or greater than EUR 40 000 and less than EUR 150 000 for works or at the thresholds referred to in Article 35 for supplies and services, by negotiated procedure after consultation with at least ten economic operators, where available, of the work and, for the services and supplies of at least fve economic operators identifed on the basis market surveys or lists of economic operators, in accordance with a criterion for rotating invitations.
– The principle of rotation – which by explicit regulatory provision has to guide the contracting stations in the consultation phase of the economic operators to be consulted and to be invited to submit tenders – is grounded in the need to avoid consolidating the position of the outgoing operator (whose advantage stems mainly from the information gained during the past due period), especially in markets where the number of active economic agents is not high.
Therefore, in order to hinder unfunded trusteeship practices over time that hinder the entry of small and medium-sized enterprises and to favor the timing distribution of award opportunities among all potentially suitable operators, the principle of rotation involves in line that the invitation to the outgoing accountant is exceptional and must be adequately motivated, given the small number of operators present on the market, the degree of satisfaction accruing at the end of the previous contractual relationship or the object and characteristics of the reference (see, for example, Resolution No. 1097 of October 26, 2016 of the National Anti-Corruption Authority, Guideline No. 4).
It must therefore be concluded that, in the present case, the following alternative is to be charged to the contracting station: or not to invite the outgoing operator or, at least, to give a precise statement of reasons why he was not able to depart from the ‘ invitation. It can not accept the frst plea in law, alleging that the main appellant complains about the error of the judgment in failing to accept the plea of inadmissibility and of the applicant’s interest.
The main appellant argued that the principle of rotation could only be validated by the pre-employed economic operators and not by those who participated in the competition, resulting in no winner.
The rule of rotation of invitations and trusts – whose foundation, as has been seen, is to avoid the crystallization of exclusive relationships between the contracting station and the previous operator – extends the concrete possibilities of awarding to other competitors, including (and for the most part) those already invited to the race, who are immediately injured and directed by their violation.
– Since the principle of revocation prohibits – except for justifed exceptions – the invitation of the outgoing operator on the occasion of the initial granting of the concession, the second ground of appeal is also unfounded, according to which the same principle would be inoperative in the absence of a market investigation.
Moreover, as stated by the frst-instance judges, the call for a number of economic operators (seven) greater than the minimum (fve) required by art. 36 (2) (b) of Legislative Decree 18 April 2016, no. 50 excludes the possibility of a small number of operators being placed on the market in the present case.
With regard to Art 3 Cost, the “asymmetrical” nature of the device imposing the rotation of invitations and reliance has the purpose of rebalance and implement the competitive dynamics of the market in which the outgoing carrier of the direct service concession is in a position of advantage over other competitors;
– as regards the violation of art. 41, in the contrary, it is common ground that Art. 36 cit. contains a pro-competitive standard that favors the entry of small and medium-sized enterprises into narrow markets and which, within the limits of proportionality, compresses the equal treatment which must also be guaranteed to the outgoing operator, to which – except for justifed exceptions it only requires “to jump” the frst reliance, so that at the next race it is in the same position with the other competitors;
– in relation to art. 97, the increased participation of “external” competitors (ensured by the rotation principle) favors the effciency and affordability of services.
He stated that there is no violation of art. 34, 2nd paragraph, c.p.a.
This provision does not allow the administrative court to provide “preventive” protection of the legitimate interest, ie the administrative authority’s reproduction by the competent authority. In the present case, the TAR has merely indicated, for the purposes of the annulment decision, the manner in which the rotation principle is implemented at re-issue.
For the purpose of rejecting the complaint, it is important to note that Art. 25, paragraph 1, letter a) of Legislative Decree no. 56, further clarifed that the principle of rotation refers to the ‘Invitations and Relocation’ phase rather than the phase of the award.
Ultimately, the invitation and reliance on the outgoing contractor would have required a more stringent motivational burden. By contrast, the tender dossier has no justifcation for the justifcatory reasons for admission to the previous operator’s procedure. The appellant’s allegations – according to which there would be few operators involved in the affdavit – were left unchecked (see paragraph 7 of the explanatory memorandum). Correctly the TAR, having perceived the violation of art. 36 of Legislative Decree 18 April 2016, no. 50, has ordered the cancellation of the award.
However, the TAR considered that the admissibility of the frst plea raised the need for the procedure to be renewed from the stage of the invitations to tender, with the result that the application for specifc protection was rejected by awarding the tendering procedure the applicant.
The College, in accepting the frst plea ofthe cross-appeal, considers that the conditions for awarding the second-graders procedure are met.
The lack of motivation of the contracting station, in view of the exceptional possibility of inviting the former operator to the procedure, entails the illegality of the latter’s participation in the procedure.
The annulment of the award of a contract does not require a further procedural activity of the Administration to identify the new successful tenderer, as it is sufficient to move the ranking in favor of the second runner, which has not been highlighted in during the course of the procedure and subsequent process, no suitable cause for acquittal.
Acceptance of the application for the award of the contract, pursuant to art. 124 cp.a., is subject to the declaration of ineffectiveness of the contract: however, in the present case, such a declaration can not be adopted since the contract is not concluded.
Source of Administrative Justice