As is well known, according to Article 80, paragraph 4 of Legislative Decree No. 50/2016 (according to the new Code, this provision is re-proposed in Article 94, paragraph 6 of Legislative Decree No. 36/2023), if an economic operator has committed serious violations, definitively ascertained, with respect to obligations relating to the payment of taxes or social security contributions, according to Italian law or the law of the State in which they are established, it constitutes grounds for exclusion from the tenders.
Over time, administrative case law has interpreted this case of exclusion differently:
(i) in the face of decisions (the most numerous) that have stated that the certifications relating to the contributory and tax regularity of participating companies, issued by the competent bodies, are binding on the contracting authorities, which cannot in any way review their content, since no power of assessment on the content or assumptions of these certifications rests with them;
(ii) to others that, on the other hand, have pointed out that precisely because verification can take place at all stages of the procedure, the constant possession of the said admission requirements must be deemed to be required, as a guarantee of the company’s continued seriousness and willingness to submit a credible bid and also the reassurance for the contracting authority of the relationship with a party, who, from the tender application until the conclusion of the contract and then again until the fulfilment of the contractual obligation, is provided with all the general and technical-economic-professional requirements necessary to contract with the public administration.
For these reasons by means of Order No. 161 of January 4, 2024 the Council of State (Sec. III) has finally called upon the Plenary Assembly for clarification on the various guidelines, proposing some questions on the need to verify that the tax regularity of the competitor persists throughout the entire duration of the open public procedure.
The case concerns an appeal brought against the award in favor of an operator who, according to another competitor, should have been excluded from the tender due to tax irregularities pursuant to Article 80, paragraph 4 of Legislative Decree no. 50 of April 18, 2016.
According to the general rule of the necessary continuity in the possession of the participation requirements throughout the duration of the tendering procedure invoked by the appellant (who classified second in the tender), it was deemed that the winner of the tender would have evidently lost the requirement of fiscal regularity during the tendering procedure, without the contracting authority having taken note of this and without it having made the necessary classifications in terms of exclusion of the same winner from the selective procedure.
On the contrary, the successful tenderer, in his defence, refers to the well-established case law that excludes any power by the contracting authority to review the findings of the certificates issued by the competent authorities (in this case, the Italian Revenue Agency (Agenzia delle Entrate)), which are evidence of the economic operator’s regularity from a tax point of view: in the present case, the absence of significant irregularities was ascertained – precisely – by means of the above-mentioned certificates, obtained by the contracting authority at various stages of the procedure (and, most recently, during the verification of the possession of the requirements prior to the award of the contract).
According to the Board, this contrasting position reveals some possible friction between the above-mentioned interpretative positions, such as to prompt the intervention of the Plenary Assembly of the Council of State.
In particular, in the Board’s opinion, first of all it is unclear whether there is always an obligation for the tenderer to inform itself, and above all to promptly inform the contracting authority, of all situations of tax or social security contribution irregularities that may arise during the tender. Secondly, conversely, is there an uninterrupted obligation for the contracting authority to verify the possible existence of irregularities (through the acquisition of certificates from the Italian Revenue Agency which also reflect the “historical” position of the operator) in every stage of the tendering procedure, given that in case-law the verification “may” take place at any time during the tendering procedure but does not necessarily imply that it “must” be carried out at every stage and in the manner referred to above?
Finally, in the event that the “timely ” verification carried out by the contracting authority through the acquisition of the certification at a given moment of the procedure is reaffirmed, the procedural issue arises as to whether a competitor who challenges the award is allowed to go beyond what is sufficient for the contracting authority, and thus document the existence of ‘excluding’ irregularities at any time during the tendering procedure other than that at which the latter conducted its verifications, with the consequent obligation for the court to ascertain the unlawfulness of the award and annul it.
This therefore gives rise to the following questions presented to the Plenary Assembly:
1. Without prejudice to the principle that the contracting authority has no power to review the findings of the certificates issued by the Italian Revenue Agency attesting to the absence of tax irregularities on the part of participants in a public tendering procedure, which are required to be issued by the administration itself, does the principle of the necessary continuity in the fulfilment by tenderers of the general requirements for participation in selection procedures always entail the duty of each tenderer to inform the contracting authority promptly of any irregularity that may arise during the tendering procedure?
2. Without prejudice to the rule referred to above concerning the sufficiency of the certificates issued by the competent authorities, is the contracting authority obliged to extend the verification of the absence of irregularities of the successful tenderer in relation to the entire duration of the procedure, where appropriate by means of the acquisition of certificates covering the entire period from the submission of the tender to the award of the contract?
3. Whether, in any event and irrespective of the sufficiency or otherwise of the verifications carried out by the contracting authority, a tenderer challenging the award of the contract can demonstrate, and by what means, that – at any time during the tendering procedure – the successful tenderer has lost the requirement of the absence of irregularities, with the consequent obligation for the administration to exclude it from the procedure?
It is quite clear that the principles as well as the above-mentioned questions that the Plenary Assembly is called upon to answer will also have repercussions on the other participation requirements that are usually verified at the application stage through the submission of certifications by the competent bodies.
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