A recent decision (Naples, Section V, 14 March 2024, no. 1733) of the Regional Administrative Court (Tribunale Amministrativo Regionale – “TAR”) of Campania, clarifies the motivational burdens that are incumbent on the contracting authority when the latter decides to exclude an economic operator from participation in a public tender, on the basis of the existence of non-automatic causes of exclusion for the same operator pursuant to Article 95 of Legislative Decree no. 36/23, in particular in the event of serious professional misconduct.
As is well known, the new Public Procurement Code (Legislative Decree No. 36/2023) distinguishes between:
- automatic grounds for exclusion pursuant to Article 94, among which under letter ‘b’ of the first paragraph, there are any final convictions or irrevocable penal decrees of conviction with reference to the crimes committed or attempted, referred to in Articles 317, 318, 319, 319 ter, 319 quarter, 320, 321, 322, 322 bis, 346 bis, 353, 353 bis, 354, 355 and 356 of the Criminal Code, as well as Article 2635 of the Italian Civil Code reported by the subjects referred to in paragraph 3 (e.g. owner, shareholder, etc.);
- and non-automatic grounds for exclusion (art. 95).
Letter e) of the latter provision includes the case of the tenderer that “has committed a serious professional misconduct, such as to cast doubt on its integrity or reliability, demonstrated by the contracting authority using appropriate means. Article 98 outlines exhaustively the serious professional misconduct and the appropriate means of proving it.” Well, among the serious professional misconduct indicated thoroughly by Article 98, paragraph 3, as far as is relevant in the case at issue in the TAR Campania judgment, letter g) includes the “contested activity by the economic operator, or by the subjects referred to in paragraph 3 of Article 94 of some of the crimes committed or attempted referred to in paragraph 1 of the same Article 94”, the latter rule recalling the crimes against the Public Administration reported above.
Furthermore, Article 98, paragraph 6, indicates the appropriate proof in relation to paragraph 3, including with reference to letter g), paragraph 3 (a provision which, as mentioned, refers to the offences referred to in Article 94, paragraph 1), the decree ordering the trial pursuant to Article 429 of the Code of Criminal Procedure. In other words, on the basis of the aforementioned provisions, the adoption of the decree ordering the trial for the offences referred to in art. 94(1)(b) can be considered as constituting a non-automatic cause for exclusion.
That said, the Administrative Court recalls that, pursuant to Article 96, paragraph 2, the exclusion of an economic operator due to a “non-automatic” case referred to in Article 95 (with the exception of paragraph 2 which relates to the different event of tax and social security violations) cannot be ordered if the following cumulative conditions are met:
- the competitor has adopted sufficient self-cleaning measures to demonstrate its reliability according to the indications contained in paragraph 6 of Article 96 (for example having compensated or undertaken to compensate for any damage caused by the crime or offence; having clarified the facts and circumstances in a comprehensive manner by actively cooperating with the investigative authorities; having adopted concrete provisions of a technical and organizational nature or related to personnel suitable to prevent further crimes or offences). Such measures must be properly assessed by the contracting authority, taking into account the seriousness and particular circumstances of the crime or offence, as well as the timeliness of their implementation, possibly envisaging one of the following: (a) if such measures are deemed sufficient and promptly adopted, the operator shall not be excluded from the procurement procedure; (b) if the contracting authority considers that the measures are untimely or insufficient, it shall inform the economic operator of the reasons for doing so;
- the operator has fulfilled the obligations referred to in paragraphs 3 or 4 of the same article, namely: a) in the event that the cause of exclusion occurred before the submission of the bid, it indicated any self-cleaning measures, or the impossibility of such timely adoption but does so at a later stage; (b) if the reason for exclusion occurs after the submission of the tender, the operator shall adopt such self-cleaning measures.
From the above-mentioned regulatory framework, the Administrative Court states that any exclusion, in the presence of “non-automatic” causes pursuant to Article 95, against an operator who has indicated the obstructive events in a timely manner and indicated the self-cleaning measures pursuant to Article 96, must be preceded by a precise grounded assessment: in the first instance, the administration must “abstractly” examine the historical background and the charges, as potential elements of the breakup of the fiduciary relationship, concretely verifying whether pending proceedings will have a negative impact, in the same way as a prediction judgment, also with regard to the tender procedure in question, assessing to this effect, every circumstance of the case (Council of State, Sec. III, no. 4669/2023; TAR Piedmont no. 932/2023); the administration must also assess the aforementioned self-cleaning measures, with specific reference to the timeliness of their implementation and their adequacy in restoring trust (art. 96, paragraph 6).
In the case at hand ruled by the TAR Campania, the contracting authority deviated from the aforementioned case law. In fact, from the minutes of the tender challenged in Court, it is apparent that the above-mentioned assessment and amply illustrated by the TAR Campania was not carried out since the exclusion was ordered sic et simpliciter, automatically, based on the pending criminal proceedings declared by the participant, without further investigation or assessment of the self-cleaning measures also adopted by the economic operator.
Lastly, it should be noted that the illegality can never be considered amended from a motivational point of view by the reasons articulated in Court by the defendant’s defense because, according to consolidated administrative case-law, a posthumous integration of the reasoning is inadmissible, with respect to what is reported in the content of the contested measures, made during the proceedings and contained in the administration’s defense writings. For these reasons, in the presence of cases that give rise to cases of automatic exclusion from the participation to a tender, the contracting authority has the burden and therefore the duty to justify the exclusion measure in a timely manner, under penalty of its unlawfulness.
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