Communications from the Contracting Authority: via ordinary- or certified e-mail?

With regard to communications in the tendering phase, there is a significant ruling (TAR Lazio, 30/01/2019, no. 1192), that clarifies communication obligations in Italy. In the case that follows, the fact that the Contracting Authority failed to send a communication via certified e-mail, has led the Regional Administrative Court of Lazio to revoke the exclusion of a competitor.

Trenitalia S.P.A. had carried out a negotiated procedure entirely managed by IT systems, for the renovation of a historic train. To be admitted to the negotiated procedure, the tender lex specialis required the participants to meet specific professional and technical capability requirements (so-called prerequisites).

A temporary grouping of companies composed of three separate companies participated in the tender. In accordance with the requirements set out in the tender notice, they submitted the history of the contractual performances respectively provided, in order to prove that they met the technical capability requirements.

However, with a note dated 2 May 2018, the Contracting Authority informed the parent company that it had been excluded, on the ground that the documentation submitted was not suitable for proving that it met the conditions required by the lex specialis. Moreover, the Contracting Authority also reported the exclusion of the applicant to the Italian Anti-Corruption Authority.

In fact, the whole issue revolved around the fact that the Trenitalia platform (the tender was entirely managed by a computerized system) contained a note of April 18, 2018 with which the Contracting Authority had invited R.T.I. to specify which were the activities carried out by each participant of the grouping of companies.

The competing companies had not given any response to the procedure for remedying deficiencies activated by Trenitalia and this had led the Contracting Authority to adopt the exclusion measure because of the failure to send the requested clarifications.

However, R.T.I. contested the exclusion, which it considered illegitimate, arguing that, apart from the publication on the platform, no communication had been sent by the Contracting Authority which, instead, should have sent an individual Certified Mail communication containing the request for clarification regarding the alleged documentary deficiencies.

The competitor's position was strongly contested by Trenitalia, which claimed that the communication of the request for clarification, in addition to being regularly published on the dedicated portal, was sent to the competitor by Ordinary Electronic Mail, being such communication form fully suitable to achieve the purpose.

Before going into the solution proposed by the TAR, we would like to briefly point out (even if they are well known concepts) the main difference between an "ordinary" and a "certified" e-mail, and what this entails in terms of the burden of proof for the parties involved. First of all, the main issue regards "security".

Certified Mail is a communication system that uses different protocols such as POP3 and IMAP. All communications are encrypted, ensuring the integrity of all incoming and outgoing correspondence. There is a certificate of sending and delivery, the operator's signature is attached, and the sender's identity and content are guaranteed. In simple terms, the certified email gives legal value to all communications.

As can be imagined, these characteristics make the litigation process much easier when, in a court of law, it is necessary to provide proof of the communication, since the attachment of the so-called "delivery receipt" of the message sent by certified mail is sufficient. Similarly, it becomes much easier to demonstrate the equivalence of the content of the email that was sent to the content that was actually ‘received’ by the recipient.

In the case in question, the Court states that the inclusion of the document (request for clarification) in the IT platform used for the tender was not sufficient fulfil the individual communication obligations to which the Contracting Authority was subject for the purposes of activating the procedure for remedying deficiencies (paragraph 9 art. 83 of the Italian Procurement Code).

This obligation could clearly be deduced from the lex specialis which expressly indicated certified e-mail addresses - and not ordinary email addresses - as the recipients of the communications, it being understood that Article 29, paragraph 1 of the Procurement Code provides the obligation of providing an individual communication to competitors, 2 days after the publication of the measure on the Contracting Authority’s website.

On closer inspection, however, it would seem that there is no real legal obligation to use the certified mail, so much so that the Contracting Authority considered sending a "standard" email more than enough to meet the obligation referred to in Article 29.

However, Trenitalia had not considered that this "communication obligation", it itself had provided in the lex specialis, with this evidently becoming mandatory for all stakeholders.

Moreover, another fundamental part of the judgment in question is the fact that, from a probative point of view, Trenitalia was not able to prove that the ordinary mail had actually reached its destination, and this because a standard e-mail does not provide, like a certified mail does, a delivery receipt. Apparently the competitor has been careful not to report to the Court to have received such an email, thus placing the entire burden of proof - both of the delivery and of the reception of the email - on the Contracting Authority.

The question arises, if the Contracting Authority had been able to prove that R.T.I. had received the "standard" email, which direction would have taken the Court (i.e.: would it have given prevalence to the lex specialis which still required the use of the certified mail, or would it have considered the burden of law ex art. 29 as fulfilled, even if by means of an ordinary email?).

The Court nullified the exclusion of the competitor, restoring R.T.I. to its original condition for the purposes of the procedure for remedying deficiencies. Clearly, once the Contracting Authority had received the requested explanations, it nevertheless proceeded to exclude the competitor for lack of the required prerequisites. But this is a different matter.

Therefore, particular attention should be given to the content of the lex specialis, which contains stringent obligations for all parties in the tender, and which actually ‘complements’ the provisions of the Procurement Code and may force the parties involved to follow certain formal procedures that could easily lead to exclusion from the procedure if not properly considered.