To demonstrate i technical-professional ability requirements requested in a tender, the experience of participating in a design competition it is not expendable. It is only so if, after having won the competition, you have been entrusted with the drafting of the technical-economic feasibility project.
This is stated by the State Council (sentence 3522 of 2024) which ruled on an appeal presented by a member of a company appointed for the design services of an integrated contract announced by the Municipality of Cosenza.
In the appellant’s competing group, which came first place, one of the members had indicated among the references his participation in a design competition which he had not won.
«The mere participation in a design competition does not entitle the non-winning competitor, nor the recipient of prizes and/or special mentions, to use this experience as a service performed, without having drawn up any Pfte for the execution of the contract», is stated in the sentence.
In the specific case, the tender specifications specified that the technical and professional skills had to refer to the contracts executed. “That is – say the administrative judges -, in accordance with the principle according to which the services, to be considered technical-professional capacity requirements, must have been actually carried out».
Having removed the competition reference indicated because it was therefore invalid, the representative for the design services of the winning group was found to be without “of the minimum technical and professional capacity requirements with consequent inadmissibility of the entire offer presented by the RTI, which should have been excluded from the procedure”with consequent award of the contract in favor of the appellant, second in the ranking.
The judges also report the contents of a recent ruling (Council of State, 4 April 2023, n. 3461) in which it is recalled that the special requirements for selection are essentially focused on economic and financial capacity and technical and professional capacity, which the economic operator can demonstrate through documentation in which it is assumed that the professional has stipulated a contract for the assignment and performance of services. This is especially true in reference to the requirement of economic and financial capacity, «since it does not seem conceivable to prove these elements if the economic operator was not a party to the contract and therefore the center of attribution of all the effects deriving from the assignment».
Returning to the specific case, the reference on which the sentence focused could not be valid because the designer «had drawn up a project only for participation in the tender and not the technical-economic feasibility project for the actual execution of the contract, having only received in sixth place in the ranking.”
Then regarding theintegration of requirementsi, in litigation, not declared in the tender, through preliminary assistancethe judges refer to the prohibition on posthumous integration of the requirements, established by administrative jurisprudence.
As already stated by the Council of State, in fact: «In the context of a public tender, preliminary assistance for the proof of the requirements cannot be admitted, given not only the non-existence of the lack of a formal element of the application, but also the peremptory nature of the relevant deadline, with immediately excluding consequences, where, at otherwise, preliminary relief would be equivalent to a substantial remission in terms”.
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published on: 04/30/2024