The mere proceduralization of thedirect assignmentthrough the acquisition of a plurality of estimates and the indication of the criteria for the selection of the operators does not transform the direct assignment into a tender procedure, nor does it enable the subjects who have not been selected to contest the evaluations carried out by the Administration regarding the compliance of the products offered with their needs.
Direct award: the procedural scan in the new Procurement Code
This is stated by the Court, recalling previous case law on the matter. TAR Lombardy with the
judgment of 11 June 2024, n. 1778with which it confirmed the full legitimacy of the actions of a Contracting Authority and rejected the appeal proposed by an EO in the context of a direct award procedure, pursuant to art. 50, paragraph 1, letter b), Legislative Decree no. 36/2023 (Public Contracts Code).
In the case in question, the SA contacted five operators registered in the lists present in the regional e-procurement platform. The RUP evaluated the 2 technical and economic offers received, considering the appellant’s offer to be the lowest, but not congruent with the ministerial tables on hourly costs for labor, and therefore choosing the other operator.
Hence the appeal for violation of the procedure for verifying the appropriateness of the offer to which SA was bound in the tender specifications.
The TAR preliminarily highlighted that in the specifications there was no reference to a constraint on the part of the Administration with respect to the rules governing the procedure for
Check the anomaly provided for by Legislative Decree no. 36/2023
The decision to contract instead, the administration expressed its willingness to proceed with a direct assignment below the threshold, following a request for estimates, the
“the overall qualitative and economic evaluation” is delegated to the sole person responsible for the procedure, “without generating any type of ranking among the participating operators”.
Evaluation of offers in direct contracts: ok to the discretion of the SA
The evaluation of the offers, and therefore also of their appropriateness, was therefore left to the judgment of the RUP, without the procedure for evaluating the anomaly being regulated, nor was a reference made to the rules of the public procurement code.
Furthermore, in the direct award procedures, the new Public Contracts Code provides that the choice of the operator “even in the case of prior consultation with multiple economic operators” And “operated at the discretion of the contracting authority” (art. 3, Annex I.1), without prejudice to the obligation to motivate the reasons (art. 17, c. 2).
It therefore escapes the review of legitimacy by the administrative judge, unless it is manifestly affected by illogicality, arbitrariness, unreasonableness, irrationality or misrepresentation of the facts.
In the case in question, the assessment expressed by the sole person responsible for the procedure with the contested report is not affected by such defects and the reasons given as the basis for the judgement of incongruity of the offersince it concerns the assignment of a service with a high labour impact, in which the RUP had detected the deviation from the hourly cost envisaged by the national collective labour agreement indicated in the ministerial tables.
Direct award: the differences with negotiated procedures
Nor could the award, contrary to what was claimed by the appellant, be considered a negotiated procedure pursuant to art. 50, paragraph 1, letter e) of Legislative Decree no. 36/2023 and not a direct award pursuant to art. 50, paragraph 1, letter b), Legislative Decree no. 36/2023.
The SA, explains the TAR, has in fact declared that it wants:
- proceed with a direct award, pursuant to art. 50, paragraph 1, letter b), Legislative Decree no. 36/2023, in consideration of the value of the contract, of an amount less than 140,000 euros;
- identify the operator to whom to entrust the service after comparing estimates requested from five operators;
- entrust the RUP with the overall qualitative and economic evaluation of the estimates, evaluation “described in a specific report drawn up by the same, without generating any type of ranking among the participating operators”.
The clear indication of the applied rule, the amount of the service being entrusted, lower than the threshold of 140 thousand euros, the provision of a mere comparison of estimates and the absence of a judging commission appointed to evaluate the offers, so that the identification of the estimate deemed most convenient for the administration is carried out directly by the RUP, without the formalities of the public session and without the preparation of a final ranking among the various proposals, reveal the administration’s desire to resort to a direct award method and not to a comparative procedure.
In particular, the administration’s decision to consult five operators does not reveal the will to call a negotiated procedure: art. 50, paragraph 1, letter b), Legislative Decree no. 36/2023 allows the direct awarding of services and supplies, for an amount less than 140,000 euros, “even without” consultation of several economic operators and art. 3, Annex I.1 of the Contracts Code expressly provides for the right for the contracting authority to consult several operators.
Furthermore, as already stated by jurisprudence in similar cases, “the mere proceduralization of the direct award, through the acquisition of a plurality of estimates and the indication of the criteria for the selection of the operators (proceduralization which, moreover, corresponds to the provisions contained in the Guidelines no. 4 for all direct awards; see paragraph 4.1.2 on the initiation of the procedure), does not transform the direct award into a tender procedure, nor does it enable the subjects who have not been selected to contest the assessments carried out by the Administration regarding the compliance of the products offered with their needs”.
Therefore, the following are not relevant:
- the request for a technical offer and an economic offer, to be formulated after carrying out an inspection;
- the indication of a “base auction” amount;
- the predetermination of evaluation criteria.
Nor does the request for the operators to be in possession of the following transform the direct award into a tender procedure:
economic-financial and technical-professional capacity requirements which is, indeed, compliant with the provisions of art. 17, paragraph 2, Legislative Decree no. 36/2023 by virtue of which, in the case of direct assignment, the decision to contract “identifies the object, the amount and the contractor, together with the reasons for its choice, the general requirements and, if necessary, those relating to economic-financial and technical-professional capacity”.
The appeal was therefore rejected, confirming the legitimacy of the procedure, falling within the category of direct award pursuant to art. 50, paragraph 1, letter b) of the Procurement Code, with evaluation of the offers by the RUP.
© Reproduction reserved
