Can one apply procedures for remedying deficiencies to Public-Private Partnerships awarded to private companies upon public evidence? Evidently not, considering their nature

The Port Authority of Eastern Sicily published a call for bids to receive proposals of Public-Private Partnerships, but subsequently decided to withdraw it.

At that point a company that in the meantime had responded to the call, contested the fact that the Port Authority could withdraw it without being obliged to evaluate the received proposal that, at that point, had become for all intents and purposes a PPP awarded to a private company upon public evidence ex art. 183, paragraph 15, Legislative Decree no. 50/2016.

The Government then proceeded to evaluation of the presented project, but deposed that it should be excluded due to the lack of deposition of a “project of technical and economic feasibility as required” by the code of tenders.

The company challenged this decision, maintaining that it was not the case that there was not a project of feasibility, and that, in any case, the Government was required to request its potential correction, in the course of the procedure, in cases in which it had found any lack of documentation. This is established both by the institution of “procedures for remedying deficiencies” and by the aforesaid art. 183, paragraph 15 (“the contractor government can invite the proponent to carry out modifications to the project of feasibility necessary for its approval”).

Invested with making a judgement, the Catania Tar firstly made an interesting reconstruction of the institution of PPPs awarded to private companies upon public evidence. They are composed of two different procedural “moments”, the first the choice of public project, the second the selection- through public tender- of the best economic operator capable of completing the designated project.

The 1st module, then, connotes fullest administrative discretion and does not diminish in terms of the public bid, insofar as that which it underscores is exclusively the interest of the Government “to include works and services proposed by the private partner in the planning tools”.

As a consequence, the Government, if it does not find the project subjected to its attention interesting and/or complete, has no “duty” to arrange correction of documents and/or procedures to remedy deficiencies regarding it, but only the “ability” to do so.

Regarding procedures to remedy deficiencies, aside from the fact that art. 183 is a law of “special” character (to which, therefore, one absolutely cannot apply the aforesaid institution), we should also add that while in a tender procedure- in which it is the Government that “asks” bidders for an offer that satisfies the aim of the tender (proposed by the same Government)- in PPPs ex art. 183, paragraph 15 it is the private partner that presents a proposal, that therefore must be entirely complete and exhaustive, and cannot place the burden on the Government to also ask for the completion of a project not its own.

In light of these considerations, the TAR therefore dismissed the company’s appeal.

Thus, from this sentence we learn that tenders presented by private companies to be awarded upon public evidence must necessarily be composed of a project of feasibility, of a draft agreement, and of a certified economic-financial plan. Moreover, all these documents must be immediately correct and complete, without  private companies therefore being able to “rely” upon any adjustment resulting from requests and suggestions on the part of the Government. Furthermore, the Government, if it does do so, could potentially risk favouring one economic operator over another.