29 Apr 2024 18:14
of SF
Contract in the Terni area for the management of a migrant reception center with around 500 places, nothing to be done for the prefecture of Terni. The Council of State – section V, president Rosanna De Nictolis – rejected the appeal proposed following the 2023 Umbria TAR ruling: the non-profit cooperative society L’Aurora, initially excluded from the procedure, rejoices. Also affected by the matter were the Idea laboratory, Arci Solidarietà Terni, Casa Vincenziana Andreoli and Cassa Vincenziana srl, none of which appeared in court.
THE STORY: PREFECTURE AND AURORA TO THE TAR FOR RECEPTION
The outcome
The TAR ruled in favor of the cooperative company, so at the end of 2023 the Council of State accepted the prefecture’s precautionary request. Now there is the judgment on the merits of the appeal brought by the ministry for the violation of article 80 of legislative decree 50 of 2016, «since the judge of first instance would not have taken into account that, in the absence of any communication from of the competing company regarding facts potentially relevant for the purposes of its continued reliability, no obligation of cross-examination would burden the contracting authority itself precisely because of such unfair behavior of the private economic operator”. Rejected. First of all – explain the administrative magistrates – such exclusions “must usually be preceded by an adequate discussion between the contracting authority and the company, so that the latter can provide adequate demonstration of any measures of self-cleaning in the meantime adopted on a technical and organizational level”. Measurements that can also be demonstrated for ongoing competitions. The lawyer Pietro Laffrano took care of defending L’Aurora.
THE PROCEDURE IN QUESTION – THE DOCUMENTS
The Council of State
The reason
Therefore the prefecture’s exclusion provision «did not take into account the declarative omission, nor did it explain the reasons for the failure to activate the required cross-examination. In other words, no evidence was given regarding the disloyalty of the appellant cooperative; an indefectible procedural step on the basis of community legislation was clearly omitted”. Then the list gives strength to the sentence: «Professional misconduct can never be a source of automatic exclusion but only of expulsion ordered following procedural cross-examination; during this cross-examination, the company accused of professional misconduct is allowed to prove that it has adopted effective self-cleaning measures; in other words, the procedural cross-examination is also aimed at evaluating whether the unfair behavior towards the contracting authority is to be ascribed only to the previous organizational decision-making structure (from which it is then intended to depart)”. The contracting authority “completely omitted” this step. So there is the rejection, the TAR ruling confirmed.
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