The Firm has represented a major transport company in Bologna in delicate legal proceedings concerning public procurements, which ended with the granting of the appeal brought before the Council of State (decision n. 6349 of 22 December 2014).
In the specific case, as a result of a procurement procedure based on the most economically advantageous tender criterion, the Local Health Authority entrusted the transport service of biological material and other materials, for an estimated annual amount of EUR 1.158.000,00, excluding VAT, and for a period of four years, which could be renewable for 2 additional years after the award, to the successful tenderer (determination of 17 December 2013).
The company represented by Zunarelli appealed against the award before the Administrative Court of Emilia Romagna, Bologna seat, highlighting in particular the defects of the sub procedure verifying irregularities in the tender, which must be implemented, according to the provisions of the Code of public contracts, in case of “excessive discount”.
However, by decision of 17 April 2014, n. 430, the Administrative Court dismissed the application brought by the company represented by the Firm. The decision was appealed before the Council of State by the company that had resorted to the Administrative Court, on the basis of several reasons.
Ruling on the appeal, the Council of State pointed out the inadequacy of the reasons of the challenged award as well as the violation of the rules governing the procedure concerning the irregularities in the bid, particularly with regard to the entries relating to the personnel costs and to the offered price, emphasizing the line of decisions on the issue. In fact, according to the administrative case law, the judgment on the fairness of the bid for tender is questionable: “… in case of macroscopic illogicality or factual incorrectness which make evident the overall unreliability of the bid” (in these terms, Council of State, sect III, October 21, 2014, n. 5196).
In its decision, the Administrative Judge has stated that: “in light of the specific symptomatic elements identified by the appellant, we can, in this case, deduce that the Administration’s technical-discretionary assessment, tangled amidst the above mentioned justifications, is incongruously based on elements that are entirely inadequate to explain the adequacy of the tender at issue, given the objective pursued by the procurement, which is its proper implementation, within the limits of the planned expenditure and of the offered amount, the verification of which represents, at the end of the day, the primary purpose of the irregularity verification procedure”.
(Rome Office, Antonio Salamone)
