Taken from: Sentenze Appalti.it
TAR Parma, 18.06.2024 n. 155
With further criticism, the appellants contest the application of direct award pursuant to art. 50 of Legislative Decree 31 March 2023 n. 36invoking the applicability to the specific case of the provisions of theart. 187 of Legislative Decree 31 March 2023 n. 36.
Regardless of any assessment relating to the duration of the concession entrusted to -OMISSIS- srl and the evoked elusive purposes of the favor partecipationis, aimed, ultimately, at the exclusion of the outgoing operator from the insolvency procedure, the Board believes it can valorise the relevant findings to the inapplicability of the direct award referred to in art. to the concession of the service in question. 50 cited, the validity of which allows us to overcome and absorb the further complaints articulated to contest the methods of choosing the new entrusted economic operator.
Legislative Decree 31 March 2023 n. 36, in Book II «Of the Contract», in art. 50 «Procedures for awarding» provides, in paragraph 1, that «Except as provided for in articles 62 and 63, the contracting authorities shall proceed with the awarding of contracts for works, services and supplies of amounts lower than the thresholds referred to in the article 14 with the following methods: a) direct assignment for works worth less than 150,000 euros, even without consulting multiple economic operators, ensuring that subjects in possession of documented previous experience suitable for the execution of contractual services are chosen, also identified among those registered in lists or registers established by the contracting authority; b) direct assignment of services and supplies, including engineering and architectural services and design activities, for an amount of less than 140,000 euros, even without consulting multiple economic operators, ensuring that subjects in possession of documented previous experience are chosen suitable for the execution of contractual services, also identified among those registered in lists or registers established by the contracting authority; c) negotiated procedure without tender, after consulting at least five economic operators, where existing, identified on the basis of market surveys or through lists of economic operators, for works with an amount equal to or greater than 150,000 euros and less than 1 million euros ; d) negotiated procedure without tender, after consulting at least ten economic operators, where existing, identified on the basis of market surveys or through lists of economic operators, for works of an amount equal to or greater than 1 million euros and up to the thresholds set out in article 14, without prejudice to the possibility of resorting to the procedures for choosing the contractor referred to in Part IV of this Book; e) negotiated procedure without tender, after consulting at least five economic operators, where existing, identified on the basis of market surveys or through lists of economic operators, for the awarding of services and supplies, including engineering and architectural services and the design activity, for an amount equal to or greater than 140,000 euros and up to the thresholds referred to in article 14″.
In accordance with the aforementioned art. 50, therefore, direct awarding only concerns contracts for works with an amount lower than €150,000 and contracts for supplies and services (including engineering, architecture and design) with an amount lower than €140,000.00. In such cases, the awarding of the contract may also take place without prior consultation and to operators possibly drawn from lists of the contracting authority, but after verification of documented experience.
Legislative Decree 31 March 2023 n. 36, in Book IV «Of public-private partnerships and concessions», Part II «Of concession contracts», dictates the regulations applicable to public-private partnerships and, in particular, to concessions.
The art. 174 «General provisions», provides in paragraph 3 that «the contractual public-private partnership includes the figures of the concession, the financial leasing and the availability contract, as well as the other contracts stipulated by the public administration with private economic operators who have the contents referred to in paragraph 1 and are aimed at achieving interests worthy of protection. The assignment and execution of the related contracts are governed by the provisions of Titles II, III and IV of Part II. The methods of allocating operational risk, the duration of the public-private partnership contract, the methods of determining the threshold and the methods of calculating the estimated value are governed by articles 177, 178 and 179″.
In particular, Title II «The awarding of concessions: general principles and procedural guarantees», provides (from art. 182 to art. 185) the ordinary procedure for awarding concessions according to the public tender procedure, regulated through the sequence of the notice (art. 182), of the procedure (art. 183), of the terms and communications (art. 184) and of the award criteria (art. 185).
The art. 187, then, dictates the regulation of «concession contracts of an amount lower than the European threshold», with the provision, in paragraph 1, that «for the awarding of concession contracts whose value is lower than the threshold referred to in the article 14, paragraph 1, letter a), the granting body may proceed by negotiated procedure, without publication of a tender notice, after consultation, where existing, of at least 10 economic operators, in compliance with a criterion of rotation of the invitations, identified on the basis of market surveys or through lists of economic operators. The granting body remains entitled to award the same concession contracts for amounts lower than the European threshold through the tender procedures governed by this Title”; in paragraph 2 that «the rules on execution referred to in Title III of this Part apply to contracts of amounts lower than the European threshold».
The choice of the legislator of the new code of public contracts was, therefore, to autonomously regulate concessions, as species of the genus of the contractual public-private partnership, recognizing their autonomy with respect to procurement contracts not only as regards concerns the substantive aspects, but also what is specifically relevant to procedural profiles.
In fact, we are witnessing an autonomous regulation of the procedures for awarding concessions, without any reference to the regulations concerning the procurement sector, with the aim, evidently considered essential, of attributing autonomous dignity to a now significant portion of public contracts.
As regards specific relevance, then, to concessions of amounts lower than the European threshold, the choice of the 2023 legislator was to make a radical reversal of direction compared to the previous regulations, autonomously regulating the awarding of such contracts without any reference to the provisions dictated for procurement contracts and, in particular, without any reference to art. 50 of Legislative Decree 31 March 2023 n. 36.
Therefore, the procedure for awarding concessions below the threshold of European relevance may take place according to the methods outlined in the aforementioned art. 187, or by negotiated procedure, without publication of a tender notice, after consultation, where existing, of at least 10 economic operators, without prejudice to the option of the granting body to use the tender procedures regulated, for concessions, by the other provisions of Title II, Part II of Book IV of the Code.
The provision referred to in art. 187 cited responds, on the one hand, to the same objectives of flexibility and simplification which inspired the art. 50 of Legislative Decree 31 March 2023 n. 36 (further reiterated by the National Recovery and Resilience Plan); on the other hand it seems to valorise the pro-competitive needs in a more markedly guaranteed manner, intending to involve the greatest possible number of economic operators (ten), even with evident asymmetries compared to the provisions of the art. 50 which for works of an amount equal to or greater than 150,000.00 euros and less than 1 million euros provides for a negotiated procedure without tender after consultation with at least five economic operators (art. 50, paragraph 1, letter c), for the the assignment of services and supplies from 140,000.00 euros up to the European thresholds, provides for the consultation of at least five economic operators (art. 50, paragraph 1, letter e) and only for works of an amount equal to or greater than 1 million euros and up to the thresholds referred to in the art. 14 requires the prior consultation of at least ten economic operators.
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