Public tender procedures: on the interest in appealing and the identification of the opposing party and the determination of the value of the contract<\/p>\n
Administrative justice \u2013 Interest in bringing proceedings \u2013 Public contracts and obligations of the public administration \u2013 Supply contracts \u2013 Participation of only two companies \u2013 Appeal against exclusion before the award \u2013 Opposing party \u2013 None<\/p>\n
The nature and level of protection of the interest in competing for the award \u2013 which is and remains instrumental and not final \u2013 does not change based on the number of participants in the procedure because, in any case, the relationship with the good of life requires the necessary intermediation of the proceeding administration, which, following the opening of the bids, is called upon to make, following complex evaluations, the final decisions on whether or not to award the contract.<\/p>\n
Before such a decision, each competitor only has the interest \u2013 not protected by the law \u2013 in competing with the narrowest possible group of candidates, which is not suitable for them to acquire the status of a counter-interested party in the proceedings in which others are cultivating their own interest, equally instrumental, in participating in the procedure\u201d. (1).<\/p>\n
Public contracts and obligations of the public administration \u2013 Supply contract \u2013 Amount of the provisional guarantee \u2013 Option clauses \u2013 Inclusion<\/p>\n
Article 14, paragraph 4, Legislative Decree no. 36 of 31 March 2023, in wanting to include, within the overall value of the contract, any form of possible options, adopts a generic formulation, suitable to encompass not only the hypothesis of the option referred to in art. 1331 of the Civil Code, but also \u201cspurious\u201d or \u201chybrid\u201d forms, in which the typical cause of the corresponding civil law figure is enriched with \u2013 or is altered and contaminated by \u2013 elements external to it, in accordance with the provisions of art. 120, paragraph 1, letter a), of Legislative Decree 36\/2023 and, more generally, with the specificity of public works contracts.\u00a0\u00a0 (2).<\/p>\n
In its reasoning, the section underlines that, moreover, even for framework agreements and dynamic purchasing systems \u2012 which certainly do not grant the client any potestative right to entrust the performance of the service but rather require a new expression of consent by the private contractor (even if partially bound by the previous acceptance of the conditions set by the framework agreement or the dynamic purchasing system) for the purposes of, respectively, the stipulation of the implementing contracts or the awarding of specific contracts \u2012 the amount to be taken into consideration is the maximum estimated amount net of VAT of the total contracts envisaged during the entire duration of the framework agreements or the dynamic purchasing system, pursuant to art. 14, paragraph 16, of Legislative Decree 36\/2023, so that the determination of the overall value of the contract (and, therefore, of the provisional guarantee) is independent of the unilateral or consensual nature of the supply orders.<\/p>\n
Conforming: C.g.a., legal section, March 31, 2021, no. 276; Regional Administrative Court for Lazio, section III, March 6, 2025, no. 4807.<\/p>\n
Source<\/p>\n
Administrative Justice<\/p>\n","protected":false},"excerpt":{"rendered":"
Public tender procedures: on the interest in appealing and the identification of the opposing party and the determination of the value of the contract Administrative justice \u2013 Interest in bringing proceedings \u2013 Public contracts and obligations of the public administration \u2013 Supply contracts \u2013 Participation of only two companies \u2013 Appeal against exclusion before the award \u2013 Opposing party \u2013 None The nature and level of protection of the interest in competing for the award \u2013 which is and remains instrumental and not final \u2013 does not change based on the number of participants in the procedure because, in any…<\/p>\n","protected":false},"author":2,"featured_media":0,"comment_status":"closed","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[223],"tags":[],"yoast_head":"\n