Necessary Determinateness of the Subject Matter of the Public Procurement Procedure

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In this judgment, the Council of State has once again ruled on the impossibility for economic operators to provide a suitable and informed tender offer due to the vagueness and uncertainty of the subject matter of the procurement.

The case originates from an appeal – originally submitted to the Regional Administrative Tribunal of Sardinia concerning the signing of a framework agreement for the award of the meals service to prisoners – in which one of the competitors obtained the annulment of the contested provisions due to the vagueness of the subject matter of the procurement. In particular, it was alleged that the tender specifications – by omitting the remuneration of a part of the services – did not allow for “the elaboration of a reliable calculation of economic convenience for the purpose of an informed and serious participation in the public procedure.”.

The court of first instance, therefore, concluded that the economic structure of the tender was unsuitable to ensure a proper and prior assessment of the value for money of the deal, thus preventing operators from a thoughtful participation in the public procedure.

The judges of Palazzo Spada, rejecting the defendant’s claim that the award of the service should have been classified as an executive contract of the previous framework agreement, confirmed the main differences between the procurement contract and the concession.

In the procurement contract, in fact, the contractor’s remuneration is entirely borne by the contracting authority; on the other hand, in the context of a concessionary relationship, the concessionaire establishes contractual relations and draws its remuneration from the end user, so that the operational risk is entirely borne by the concessionaire (in the same terms, ex plurimis, Council of State, Sec. IV, 22 March 2021, n. 2426).

In the present case, the provision according to which the execution of a part of the service would be subject to an eminently discretionary choice of the contracting authority and, therefore, not previously assessable at the time of the submission of the offers, resulted in an increase in the contractual risk, structurally different and exorbitant compared to the ordinary risk under Article 3, paragraph 1, lett. zz), of Legislative Decree no. 50 of 16 April 2016.

Finally, the Council of State declared illegitimate the claim of the contracting authority to require the economic operator to perform a further service, as it was not originally included in the subject matter of the procedure but only envisaged as a possibility by the tender rules.

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