On the procurement of supplementary investigative assistance by the contracting authority aimed at obtaining the DGUE<\/p>\n
Public Administration Contracts and Obligations \u2013 Investigative Assistance \u2013 Purpose<\/p>\n
In the context of public procurement procedures, the investigative assistance \u2013 a tool of loyal cooperation whereby the contracting authority requests the bidder, in the presence of formal deficiencies and without prejudice to the non-modifiability of its offer, to rectify, supplement, or clarify the documentation submitted in the tender \u2013 constitutes an expression of overriding European principles, such as protection of competition, maximum participation, and proportionality. It aims to prevent any purely extrinsic irregularities or breaches from jeopardizing the most deserving economic operators. This is also in the interest of the contracting authority itself, which could lose the opportunity to select the best bidder due to easily remediable procedural defects.<\/p>\n
Errors and omissions in declarations and documents which do not affect the substantial guarantees (possession of the requirements prescribed by the tender law), as they do not alter in any way the fair competitive comparison, do not favour any competitor to the detriment of others and therefore cannot have an expulsion effect. (1).<\/p>\n
Public Administration Contracts and Obligations \u2013 Investigative Assistance \u2013 EU Law \u2013 Supplementary Assistance \u2013 Limits<\/p>\n
Pursuant to Article 56, paragraph 3, of Directive 2014\/24\/EU of the European Parliament and of the Council of 26 February 2014, investigative assistance may be activated not only to clarify, but also to integrate and complete tender information or documentation, subject only to compliance with the principles of equal treatment and transparency.<\/p>\n
Article 101 of Legislative Decree No. 36 of 31 March 2023 follows this path, extending the scope of investigative assistance to the limits set by the European provision. (2)<\/p>\n
In its reasoning, the section clarified that the Court of Justice has defined the scope of the provision by specifying that:<\/p>\n
a) the principle of equal treatment and the obligation of transparency preclude any form of negotiation or negotiation between the contracting authority and the tenderers in a public tender procedure;<\/p>\n
b) in principle, a tender cannot be modified after it has been submitted, either on the initiative of the contracting authority or the tenderer (Court of Justice of the European Union, Section IV, 29 March 2012, C-599\/10);<\/p>\n
c) the request for clarification must be addressed equally to all tenderers in the same situation and must concern all points of the tender requiring clarification (Court of Justice of the European Union, Section VIII, 11 May 2017, C-131\/16, Archus and Gama);<\/p>\n
d) in exercising this power, the contracting authority must treat candidates equally and fairly, so that, at the end of the tender selection procedure and taking into account its outcome, it cannot appear that the request for clarification has unduly favored or disadvantaged the candidate or candidates to whom it was addressed (Court of Justice of the European Union, Section VIII, 11 May 2017, C-131\/16, Archus and Gama);<\/p>\n
e) the request for clarification cannot remedy the lack of a document or information required by the tender regulations under penalty of exclusion, given that the contracting authority is required to strictly observe the criteria it itself establishes (Court of Justice of the European Union, Section VIII, 28 February 2018, Cases C-523\/16 and C-536\/16, MA.T.I. SUD S.p.a.);<\/p>\n
f) the request for clarification, and therefore the activation of the investigative assistance, is admissible in the presence of information and documentary deficiencies not requested by the contracting authority under penalty of exclusion (Court of Justice of the European Union, Section VI, 2 June 2016, Case C-27\/15, Pizzo Pippo and others);<\/p>\n
g) the request for clarification may not lead the interested bidder to submit a new offer (Court of Justice of the European Union, Section IV, 29 March 2012, SAGELV Slovensko and Others, C-599\/10);<\/p>\n
h) any additions or corrections to the offer may be permitted in exceptional circumstances, but only if they do not result in a substantial modification of the offer and are therefore intended to eliminate obvious material errors (Court of Justice of the European Union, Section VIII, 11 May 2017, C-131\/16, Archus and Gama).<\/p>\n
Public Administration Contracts and Obligations \u2013 Investigative Assistance \u2013 Extension<\/p>\n
Article 101 of Legislative Decree no. 31 March 2023 36 (“Public Contracts Code”) undertakes to avoid, as far as possible, that the rigorous formalities that accompany participation in the tender result \u2013 where the equal position of the competitors is guaranteed \u2013 in unnecessary prejudice to the substance and quality of the competing negotiation proposals and, ultimately, to the outcome of the administrative activity.<\/p>\n
The rule \u2013 which operationally translates a canon of loyal cooperation and mutual trust between contracting authorities or granting bodies and economic operators (see art. 1, paragraph 2-bis of Law no. 241\/1990 of 7 August 1990) \u2013 has seen its centrality recognized (and increased) in the new Public Contracts Code which, on the one hand, dedicates an autonomous provision to it and, on the other hand, amplifies its scope, its scope and its functions, also overcoming certain uncertainties which have arisen widely in operational practice. (3).<\/p>\n
Public Administration Contracts and Obligations \u2013 Investigative Assistance \u2013 DGUE \u2013 Admissibility<\/p>\n
Even the complete omission of the DGUE is susceptible to investigative assistance (so-called integrative or supplementary) in the presence of a duly signed application to participate in the tender, given that a self-declaration is relevant which serves to simplify the administrative burdens required for participation in the tender and that art. 101, paragraph 1, letter a) of Legislative Decree no. 36 of 31 March 2023 (“Public Procurement Code”) provides that it is possible to “integrate any missing elements in the documentation sent to the contracting authority within the deadline for submitting offers with the application to participate in the tender procedure or with the European Single Procurement Document”. The use of the conjunction “or”, with a disjunctive value, serves to coordinate two fragments of the statement perceived as alternative. (4).<\/p>\n
The section therefore did not share the opinion of the first judge, who held that “the wording of Article 101 cited above no longer seems to allow the failure to produce the DGUE to be considered remediable. 8.1. \u2013<\/p>\n
The literal element \u2013 \u200b\u200band the recognized primacy of the related interpretative criterion \u2013 does not appear to be surmountable, for this specific profile, unless one wishes to completely disavow its preceptive value, establishing the rule pro non scripta.<\/p>\n
8.2. \u2013 It seems reasonable, ultimately, to recognize that, in light of the unequivocal fact of positive law, a “quantitative” limit has been codified on the “supplementary\/complementary assistance” pursuant to Article 101, paragraph 2, letter a), cited above, operating at the level of the object, given the impossibility of availing of the institution for the purpose of making up for the failure to produce the DGUE, given that the investigative integration, as regulated, logically presupposes the existence, for what is of interest here, of a DGUE which has been the object of transmission to the S.A., since this may have as its object, as mentioned, “any missing element” of the “documentation transmitted [\u2026] with the European single procurement document” and not – therefore – the DGUE itself.<\/p>\n
8.3. \u2013 The radical nature of the deficiency constituted by the complete failure to produce the DGUE (equated to the failure to submit an application to participate) therefore appears to preclude, in the revised code\u2014by explicit choice of the Legislator which, contrary to the objections of the opposing party’s defense, does not, in the Panel’s opinion, present any critical aspects with respect to the provisions of Article 56, paragraph 3, of Directive 2014\/24\/EU given the “safeguard” of a “contrary provision of national law” contained therein\u2014the legitimate activation, in such cases, of the investigative assistance.<\/p>\n
8.3. On the other hand, it shared the argument of the appellant, the successful tenderer, for whom the investigative assistance had been carried out, according to which “the absence of the ‘container’ in the presence of part of the ‘content’ cannot constitute a legitimate reason for automatic exclusion of the entire grouping.”<\/p>\n
(1) Conforming: As to the first part of the maxim: Council of State, Section V, 2 March 2017, no. 975. As to the second part: Council of State, Section V, 9 January 2024, no. 295; Section VI, 24 February 2022, no. 1308.<\/p>\n
(2) There are no precedents in the exact terms.<\/p>\n
(3) Conforming: Council of State, Section V, 21 August 2023, no. 7870 and subsequent case law with reference to this precedent: among many, most recently, Council of State, Section V, 16 December 2025, no. 9967.<\/p>\n
(4) There are no precedents in the exact terms.<\/p>\n
Administrative Justice Source<\/p>\n","protected":false},"excerpt":{"rendered":"
On the procurement of supplementary investigative assistance by the contracting authority aimed at obtaining the DGUE Public Administration Contracts and Obligations \u2013 Investigative Assistance \u2013 Purpose In the context of public procurement procedures, the investigative assistance \u2013 a tool of loyal cooperation whereby the contracting authority requests the bidder, in the presence of formal deficiencies and without prejudice to the non-modifiability of its offer, to rectify, supplement, or clarify the documentation submitted in the tender \u2013 constitutes an expression of overriding European principles, such as protection of competition, maximum participation, and proportionality. It aims to prevent any purely extrinsic irregularities…<\/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