TO REVISE THE REQUIREMENTS IN THE 'CALL' OF STRESS ON THE APPLICATION FOR PARTICIPATION IN TENDER PROCEDURES The service concession expired on September 15.
widely requested the cancellation of all notices in self-defense
REJECTED THE RACE
FOR RESTAURANTS IN ROME MUSEUMS
According to the administrative courts of the TAR of Lazio and the conditions imposed by Notice of solicitation Museums of the Roman restaurant services are not respectful of the competition, because they have excessive requirements!
The ruling is due on appeal by a private company could not participate because the requirements for selection for the award of the catering services of the Museums of Rome too had the condition " I managed between dining with the same mark for three years. "
The judges noted that the requirements for participation in contracts should not be illogical, arbitrary, unnecessary or redundant and must be respectful "of the principle of proportionality, which requires that each identified requirement is both necessary and appropriate to the aims pursued."
In other words, the contracting should pay attention to creating "the least possible disruption to the economic activities" and the notice shall not constitute a "material breach of the principles of free competition, par playing field, non-discrimination and transparency. "
Oddly enough, it seems that both the Tar aware of the unreasonable demands conformity to what is reported by this union to contracting in Rome, Naples and Florence in the month of September (see ns. Press Release, September 23) as well explicit reasons that those " an unreasonable restriction of competition .
We believe that the Ministry should take note of the sentence and to avoid further disputes with consequent impact on the tender (the same issue is also being Antitrust) set aside in order to provide self-help calls to amend the said vice (besides all the inconsistencies already mentioned).
Sincerely
The National Coordination
CONFSAL UNSA-CULTURAL
For reference, the sentence in question is transcribed.
N. 32717/2010 REG.SEN.
N. 07837/2010 REG.RIC.
ITALIAN REPUBLIC
IN THE NAME OF THE ITALIAN PEOPLE
The Regional Administrative Court of Lazio
(Section Second Quater)
gives the following
JUDGEMENT
under Articles. 60 and 74 cod. proc. Admin.;
on the use of general register number 7837 of 2010 proposed by:
Soc Expo 2004 Srl, represented and defended by the lawyer. Sardo Monica, Sergio Caracciolo, with an address at Sergio Caracciolo in Rome, Via Lazio, 20 / C;
against
Ministry of Heritage and Activities' Culture, represented and defended by the state, legally domiciled in Rome, via the Portuguese, 12;
to cancel
the view of the Ministry of Heritage and Culture, Special Division for heritage historical, artistic and ethno-anthropological and the Museums of the city of Rome, to urge the IGC 05019752DF application form, published in Gazette, 5th Special Series, June 30, 2010 and related documents;
viewed the application and its annexes;
Since the entry of appearance in court of the Ministry of Heritage and Culture;
view of the briefs;
Taking all of the acts of the case;
Speaker in chambers on the day on October 6, 2010 Cons. Umberto Realfonzo and heard the parties to the defenders as specified in the minutes;
feel the same parties pursuant to art. 60 cod. proc. Admin.;
held and considered the facts and law as follows.
fact and law
The Board, in advance, believes that, after hearing about the parties must The views can be defined in closed session with ruling in a simplified form, since the conditions stated in art. 60 of Legislative Decree no. July 2, 2010, No 104, at least twenty days have elapsed since the last notification of the action, respecting no problems resulting in contradictory and sufficiency of the evidence adduced.
the appeal for annulment of the "stress the application form for the concession for six years. of cafeteria services at various museums for a total of € 6.199000 ml.
1. outset must be considered preliminary objection of inadmissibility, introduced orally to the Council Chamber, the state representative for the applicant lacks challenge to a notice of interest for which would not have made the application form.
The exception must be rejected.
must, however, as noted when the participation in the procedure for the award of a contract is precluded by the band, there is an interest in its determination to impose no-show, regardless of the application.
In such cases, in fact, since the submission of the results in a formality inevitably followed by an act of exclusion, a result similar to that of an original foreclosure and so devoid of genuine practical use (see the State Council, sect. V, 02 August 2010, No. 5069) within the limits of reasonableness and proportionality, there are therefore doubts about the eligibility of the full burden.
2. the order of importance should be examined in the first, second and third grounds of appeal. By the first plea, the appellant complains the illegality of the incorporation in one batch concession.
The first reason is not convincing.
In principle, the decision to include or not in a single contract or several lots, a package of services to be delivered by invitation to tender relates to the technical appraisal of the administration (see Council of State , sect. V, March 20, 2007, n. 1331).
In this case, in relation to the absolute homogeneity of the services, the contested provision of the notice is therefore fully legitimate.
3. With the second and third plea alleging the illegality of the additional requirement on the request to have run "three places to eat" with the same mark for three years (depending on profile) thus inhibiting the possibility of participating in or using the Ati ' availment.
The reason is well founded.
It must be remembered that, pursuant to art. 30 comma 3 °, d.lg. No 12 April 2006 163, in calls for tender for the provision of services "... choice of the dealer must comply with the principles might be derived from the Treaty and the general principles relating to public contracts and, in particular, the principles of transparency, adequate publicity, non-discrimination, equal treatment, mutual recognition, proportionality, after informal notice to which they are invited at least five competitors, if there are qualified individuals in this number in the subject matter of the concession, and with predetermined selection criteria. "
In this context, therefore, for the purpose of verification of the technical capacity, limited the list referred to artt.41 and 42 of the Decree. n.163 not constitute for the contracting, a direct link.
However, in relation to the reference to the principles of the EU Treaty determinations concerning personal qualifications for participation in contracts should not be illogical, arbitrary, unnecessary or wasteful and should be respectful of the "principle of proportionality, which requires that each identified requirement is both necessary and appropriate to the aims pursued .
The effective exercise of discretion must therefore be functionally consistent with the combination of public and private interests involved in the public auction, and must respect the principles of the Code of the contracts.
In the selection of the participation requirements, therefore, the observed non-discrimination principle requires that the awarding body must resort to those which cause the least disruption to the pursuit of economic activity.
Ultimately the entire system of the opinion should not therefore constitute a material breach of the principles of free competition and level playing field, transparency of non-discrimination in art. 2. first paragraph of the decree. n.163/2006, SM.
In this case the interest declared by the Administration on the need for a "unified management" of these services on a number of centers, museums, appears unrelated to the request for prior period of three dining "in the same brand. "
The use of the mark or brand would indeed could be considered as a "bargaining clause" of the message, ie a contractual obligation for the future of the consultant contract award, but could not incorporate any particular additional requirement compared to the turnover of a trader who operates (or deemed preferable to work for his company's choice) on the market with "brand" different.
The imposing a single brand for the various operations is a variable of the procedure which involves complete failure to participate in the race of persons whose sales also approved limits.
In essence, the clause is illegal because it constitutes an unreasonable restriction on competition, and that nothing corresponds to no interest in the contracting.
Ultimately warning about the appeal on that point is illegal and must be annulled.
4. In these profiles, which are absorbed in the remaining complaints, therefore the action is founded.
For the effect to be pronounced the annulment of the contested measure.
expenses, pursuant to art. 26 of Legislative Decree no. July 2, 2010, No 104, following the unsuccessful and are paid in € 2000.00 in favor of the appellant.
PQM
the Lazio Regional Administrative Court (Second Chamber Quater)
pronouncing definitively on the action, as suggested in the epigraph,
1. upholds the claim referred to in the headnote and the effect cancels the decision referred to in the epigraph.
2. Condemns the Administration to pay court costs in € 2.000,00.
Order that the above is carried out by the administrative authority.
Decided in Rome in the chambers on day 6 October 2010 with the intervention of the judiciary:
Angelo Scafidi, President
Umberto Realfonzo, Advisor, extenders
Stefania Santoleri, Councillor
FILED IN OFFICE
The 07/10/2010
THE SECRETARY
(Art. 89, para. 3, no. proc. Admin.)