Division into effective lots: a possible exception concerning the realisation of the objectives of the NRRP

Tar Lazio, Roma, Sez. III, 26/01/2022 n. 886

The EU community directive 2014/24 identifies in Art. 58 two particular institutions that go towards guaranteeing the fullest participation of middle-sized and small businesses in public tenders.

We refer specifically to the measures that appertain to the division- in keeping with principle- of tenders into lots, as well as the prohibition for governments to insert into tender documentation “requirements excessively severe related to economic or financial capacity”, or rather that are “not pertinent or proportionate to the aim of the tender”.

Insofar as regards the division into effective lots, the objectives of the directive were received by Italian legislators with the adoption of Art.51 of the Code of Contracts, in which the general principle of division is not put forward in absolute and binding terms but can be overcome by Governments if they express specific reasons for doing so, to which administrative judges can only object in terms of limits of reasonableness and proportionality.

However,thus far the principle of greatest possible competitiveness has often found a check in the guarantee that the admission to tender processes is permitted only to businesses, whose technical eligibility is confirmed by valid experience in executing similar tenders.

In the case in question, the justifications regarding the announcement of a sole tender regard instead, and for the first time, the implementation of the objectives contained in the National Recovery and Resilience Plan (NRRP).

Indeed, the claimant contested the ban on tenders called by Rete Ferroviaria Italiana regarding the planning and execution of works of railway signage, referring to various deals involving 5 Italian regions. They protested that the company had not proceeded to the division into effective lots, that instead would have been more reasonable and proportionate in relation to the value of the commission and the organisational difficulties involved.

The indicated amount of the starting price was 500 million Euros, with the decision to proceed to adjudication of a tender that was justified by the government with the need to swiftly assist the objectives of the NRRP and, therefore, the attainment of related finances.

In theory, through following the rationale of the government, and, indeed, selecting a sole supplier of the “ground subsystem”, both financial resources would be saved and the timeframe of authorization reduced, considering that the railway companies would be obliged to undertake testing only once, thus speeding up the launch of commercial services both of the line which was the object of technological investment and of the medium of transportation.

Ultimately, RFI represented that the chosen decision was substantially “limited”, because the only suitable one was to proceed to the launch of undertaking works within the limit of December 2024 imposed by the European Union.

On this point, the judges held that the reason released by the government should be considered “reasonable, proportionate and free of logical errors”.

This, too, in light of the fact that the decision to contain the timeframe for the release of authorisations consequent to the correct integration of the ground systems and systems on-board the vehicle was, indeed, onerous, “bearing in mind the restriction of times, of considerable strategic importance of the operation, of the importance also economic of the commission and of the consequences connected to the potential lack of respect of duties assumed at the level of the European Union”.

In conclusion, given the prohibition to undertake generic evaluations that deviate from the specific case, the case must reveal itself as the rapid effectuation of the objectives of the NRRP, and constitutes, in fact, a valid justification for an exception to the principle of “favor partecipationis”.