Taken from: Sentenzeappalti.it
TAR Catanzaro, 17.06.2024 n. 958
4.3. It should be noted that theart. 108, paragraph 9 of Legislative Decree 36/2023entitled “Criteria for the award of contracts for works, services and supplies” prescribes that “In the economic offer the operator indicates, under penalty of exclusion, the labor costs and company charges for the fulfillment of health provisions and safety in the workplace except for supplies without installation and services of an intellectual nature.”
L’art. 41, paragraph 14 of the aforementioned decree then prescribes that “In works and services contracts, to determine the amount used as the basis for the tender, the contracting authority or granting body identifies the labor costs in the tender documents in accordance with the provisions of paragraph 13.”
Finally, theart. 48 of the decree provides that “The provisions of the code apply to contracts of amounts lower than the thresholds of European relevance.”
And, therefore, on the basis of the aforementioned regulatory indices, the college believes that the applicability (also) of the rule established in the art. to direct assignments cannot be excluded. 108, paragraph 9 on the mandatory indication of labor costs under penalty of exclusion of the competitor.
4.4. For the purposes of deciding it must be remembered that the previous art. 95, paragraph 10, Legislative Decree no. 50/2016, entitled “Criteria for awarding the contract”, prescribed that “In the economic offer the operator must indicate his labor costs and the company costs relating to the fulfillment of the provisions on health and safety in the workplace work with the exclusion of supplies without installation, services of an intellectual nature and assignments pursuant to article 36, paragraph 2, letter a). The contracting authorities, in relation to labor costs, before awarding the contract, proceed to verify compliance with the provisions of article 97, paragraph 5, letter d)”.
4.5. From the comparison between the two provisions and the fact that the legislator of the new code has eliminated direct assignment (“pursuant to article 36, paragraph 2, letter a”) as an exception to the obligation to indicate labor costs, it follows the validity of the first ground of appeal with which, in fact, the appellant criticizes the failure to exclude the other party -OMISSIS- for not having expressly indicated these cost items.
5. Having clarified the applicability of the rule of mandatory separate indication of labor costs also to direct assignments, it is appropriate to verify whether in the specific case circumstances do not exist which allow deviation from the aforementioned general rule, which also has hetero-integrative force with respect to the lex competition specialis that may not include it.
5.1. It is worth remembering that the Plenary Assembly with sentences nos. 1, 2 and 3/2019, on the one hand, adhered to the formalistic reading of the art. 95 co. 10 of the Civil Code, stating that the “failure by a competitor to indicate the costs of labor and the costs for worker safety in a public tender will in any case lead to exclusion from the tender without the competitor being admitted at a later date”. moment to the benefit of the so-called ‘preliminary assistance’, even in the cases in which the existence of this declarative obligation derives from sufficiently clear and knowable provisions and regardless of the fact that the tender notice does not expressly refer to the aforementioned legal obligation of precise indication” and, on the other hand, it referred the question of the community compatibility of the rule thus interpreted to the Court of Justice.
5.2. The Court of Justice with the ruling of 2 May 2019, C-309/18, considered the articles. 95, paragraph 10, and 83, paragraph 9, of Legislative Decree no. 50 of 2016, in principle compatible with Directive no. 2014/24/EU, however, saves the situation – which is up to the national judge to verify – in which there is a “material impossibility” for the bidder to indicate those costs separately.
5.3. The jurisprudence has also clarified that the exclusionary scope of failure to comply with the obligation to indicate “own labor costs” in the offer, in accordance with the provisions of art. 95, paragraph 10, Legislative Decree no. 50/2016, does not apply when, based on the tender documentation, it is not possible to provide this indication.
5.4. In the opinion of the jurisprudence, the indicated material impossibility, however, does not exist where the statement of the obligation is missing in the body of the lex specialis, taking into account the hetero-integrative attitude of the regulatory prescription of the art. 95, paragraph 10, which must certainly be considered, also in light of the consolidated jurisprudential orientation, well known to every serious and informed economic operator.
5.5. It was further specified that the possible non-editable nature of the declaration forms prepared by the contracting authority without space for the indication in question is not in itself preclusive, in terms of the material scriptural elaboration of the terms of the offer, of the integration by the offeror (Council of State, Section V, 8 April 2021, no. 2839; Court of Justice, 2 May 2019, cit.; Council of State, Plenary Meeting, 2 April 2020, nos. 7, 8) .
5.6. This clarified, from the documentary emergencies it appears first of all that the contracting authority has initiated a selection procedure through comparison between multiple offers, which is why the defensive premise of the defendant administration centered on the temporary nature of the assignment “in the pending the definition of procedures of greater scope and duration” given that, having in any case implemented a direct assignment of a service – through comparison between estimates – intended to be remunerated with public resources, a competition has still taken place between economic operators selective character.
5.7. Secondly, it does not appear that the economic offer of the first graduated contains the detail of the costs relating to labor nor, on a material level, are there any limits to the indication in the declaration forms, as demonstrated by the fact that the offer of the other interested party expressly indicates the costs for safety and that the appellant, unlike the other interested party, correctly integrated the form with the indication of both of the aforementioned cost items.
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