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The tender procedure is illegal without the provision of compensation for the professional entrusted with the service.
This was established by the Tar for Calabria, section 1, with sentence no. 1507 of 2 August 2018, accepting the appeal of an engineer who, although he did not take part in the call for tenders issued by the Municipality for the appointment of the drafting of the municipal structural plan, had contested the call for tenders and the relative disciplinary in the part in which it provided that the task should be carried out free of charge , except for the reimbursement of expenses.
Reason for appeal
Well, according to the appellant, this clause was to be considered illegitimate under various aspects, and in particular, in conflict with the norms of the civil code and of the Legislative Decree. n. 50/2016, from which the essential burden of public procurement would be obtained . An illegitimacy that would preclude a serious participation in the competition and that, therefore, could be relied upon by immediately challenging the call for tenders, without the need to apply for participation in the procedure.
The decision of the Tar
The Board of Statutory Auditors ruled immediately, agreeing that the clause in the call for tenders providing for the free provision of the public service is actually illegitimate because it is detrimental to the subjective legal position of the operator who, despite being interested in carrying out the service does not intend to lend its work for free. The clause, therefore, can be immediately challenged by the applicant in question, even if he has not participated in the procedure, to make the illegitimacy valid in court.
The Tar deviates from the arrest of the State Rabbit: necessarily onerous contract
The Administrative Court is well aware of departing from the recent arrest , in this matter, of the Council of State (with ruling No. 4614/2017) which instead declared the announcement issued by a Municipality legitimate, where no compensation had been contemplated - but only an expense reimbursement - for the professional who would be the winner. What had triggered the events organized by different categories of professionals, to obtain a rule that would protect the fees as self-employed (culminated then with the approval of the rule on fair compensation, with the Budget Law 2017).
Returning to the ruling in question, the public service contract - states the Tar Calabria - falls into the category of "special contracts of private law" connoted by a discipline, of European derivation, derogation of contracts of common law, by reason of public interests subtended and of the subjective nature of the public contractor, and which finds its main source in the so-called. Code of Public Contracts (Legislative Decree No. 50/2016). There is no doubt that, in the light of this special legislation, the contract is marked by the necessary "burdensome"and synallagmatics of the services, being characterized both by the existence of services to be borne by both parties and by the relationship of reciprocal exchange between them. On this point, it is sufficient to recall the normative definition referred to in art. 3 co. 1 lett. ii) " public contracts " pursuant to Legislative Decree no. n. 50/2016 as contracts for pecuniary interest and stipulated in writing.
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