According to the provisions of the art. 106 (Modification of contracts during the period of effectiveness), paragraph 1, letter c, of Legislative Decree no. 50/2016 (Public Contracts Code), the Administration is required to act on the request
price adjustmentin the exercise of the power provided for by the same provision.
Furthermore, the Administration is required to respond to the request, even if inadmissible, inadmissible, inadmissible or unfounded, as it cannot remain inert, otherwise configuring a hypothesis of silence non-compliance.
Price review request: the SA is obliged to respond
This is explained by ruling of the TAR Campania of 19 June 2024, n. 1309 with which the appeal of an operator against the silent non-compliance of an SA was accepted, in relation to a request for review of the fee for the single supply in the context of a contract for school canteen services.
According to the appellant, the municipal administration should have responded to a request aimed at obtaining the price adjustment of a contract stipulated in 2019 and subsequently extended until 2023, the price of which had already been adjusted in 2022. In detail, it was requested the adjustment of the price of the single meal, based on the change in the ISTAT FOI index, for all years of execution of the contract with the exception of the first and, in particular, for the years 2021 and 2022, on the basis of the provisions of the contract and by the specifications, in application of the art. 106, paragraph 1, letter. c, of Legislative Decree no. 50/2016, considering the worsening of the contractual imbalance resulting from the change in the cost detectable on the basis of the index and despite the change in the price already arranged previously.
Request from a private individual: the PA is always required to respond
On the issue, the TAR specified that the necessary and sufficient elements for ascertaining the illegitimacy of the silence-non-compliance are represented:
- from the existence of an obligation to take action in response to the request of a private individual;
- from the expiry of the relevant deadline.
It has been specified several times in jurisprudence that this duty exists not only in the cases expressly provided for by law, but also in the cases which derive from general principles and which require the adoption of a measure. In particular, a request aimed at obtaining a favorable provision determines a obligation to provide when the person presenting it is the owner of a legitimate interest demanding, even in the absence of a specific rule that attributes to the private individual an autonomous right of initiative.
Moreover, by virtue of the second sentence of the art. 1 of law no. 241/1990, if the public administrations identify the manifest inadmissibility, inadmissibility, inadmissibility or unfoundedness of the application, they conclude the procedure with an express provision drawn up in simplified form, the motivation of which may consist of a brief reference to the point of fact or law considered decisive; therefore, implicitly, it is imposed on the PA
express yourself always and in any case on citizens’ requests, even if these are manifestly unfounded or inadmissible.
In the presence of a formal request, the Administration is therefore required to conclude the procedure even if it considers that the request is inadmissible, inadmissible, unproceeded or unfounded, as it cannot remain inactive: the legislator, in fact, has required the PA to always respond, except in extreme cases of obvious speciousness, to the requests of private individuals in compliance with the principles of correctness, good performance and transparency, allowing the parties to defend themselves in court in the event of measures detrimental to their legal interests.
It follows that any assessment regarding the existence or otherwise of the conditions for the exercise of the power or the validity or otherwise of the request is irrelevant in the appeal against the silence, centered on the inertia of the Administration.
Price review request: legitimizes the EO’s request
Furthermore, in the specific case, the appeal is well founded and must be accepted: in light of the wording of the art. 106, paragraph 1, letter c, of Legislative Decree no. 50/2016, according to which “1. Modifications, as well as variants, of valid procurement contracts must be authorized by the RUP in the manner provided for by the regulations of the contracting authority to which the RUP depends. Procurement contracts in ordinary sectors and special sectors can be modified without a new award procedure in the following cases […] c) where all the following conditions are satisfied, without prejudice to what is provided for contracts in the ordinary sectors by paragraph 7:
1) the need for modification is determined by unforeseen and unforeseeable circumstances for the contracting authority or contracting entity. In such cases the changes to the object of the contract are called variations in progress. The aforementioned circumstances may also include the occurrence of new legislative or regulatory provisions or provisions of authorities or bodies responsible for the protection of significant interests;
2) the modification does not alter the general nature of the contract;”.
There is therefore the obligation of the municipal administration to take action on the request for price adjustment, in the exercise of the power provided for by the same provision, also referred to in the contract and in the technical specifications.
In response to the request presented by the EO, no provision was adopted, despite the expiry of the procedural deadlines which, in the absence of specific indications contained in the reference regulations, can be quantified by applying the general deadline of thirty days provided for by the art. 2, paragraph 2, of law no. 241/1990.
The TAR concludes that there is therefore silence-non-compliance by the Administration, in light of the date of submission of the request and the failure to adopt, at present, the consequent measures, as the aforementioned deadline has now passed.
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