Antitrust wrongdoing and exclusion from a procurement procedure: the floor to the Regional Administrative Court of Lazio

The Regional Administrative Court of Lazio has recently ruled (decision n. 1119 of 31 January 2018) that in an antitrust wrongdoing it is possible to recognize a “grave professional misconduct” which, pursuant to art. 80, paragraph 5, sub-paragraph c) of the Italian Public Procurement Code, constitutes a ground for exclusion from a tender proceeding, and that the contracting authority has a duty to evaluate and give reasons should a candidate be the recipient of sanctions imposed by the Italian Antitrust Authority (AGCM).

Facts

The issue brought to the attention of the judges of the Administrative Court of Lazio stems from an appeal lodged by Bilfinger Sielv Facility Management S.p.A., the group leader  of a temporary association of undertakings which placed second in a call for tenders launched by Hera S.p.A., against the award granted to – and the failed exclusion of – another temporary association of undertakings led by Manutencoop Facility Management S.p.A. which turned out to be the successful tenderer. In the appeal, Bilfinger held, among other things, that the successful tenderer should have been excluded from the tender because of the sanctions that AGCM had imposed upon its mandate holder for an especially grave antitrust wrongdoing. In submitting the application to participate in the tender, Manutencoop had represented to the contracting authority the existence of the sanctions and of the pending proceeding that Manutencoop had filed to seek their cancellation. Nonetheless, according to the contracting authority, the circumstance was not such as to prevent Manutencoop from participating in the tender, because (i) the antitrust wrongdoing was not referable to one of the misconducts listed in art. 80, paragraph 5, sub-paragraph c); (ii) the nature of the measure aimed at ascertaining the wrongdoing was not final, being it sub iudice.

            Decision of the Regional Admnistrative Court of Lazio and Legal Standards

The Regional Administrative Court of Lazio, sharing Bilfinger’s complaints, reminded first of all that art. 80, paragraph 5, sub-paragraph c) of the Public Procurement Code does not provide an exhaustive list of the instances of professional misconducts, which may well encompass the antitrust wrongdoing, as moreover the Italian National Anti-Corruption Authority (ANAC) has already clarified in Guidelines No 6.

The Italian Public Procurement Code in fact entitles the contracting authorities to identify other instances that are not expressly contemplated in the abovementioned provision, if objectively referable to the abstract instance of the grave professional misconduct.

After ascertaining that the wrongdoing refers to an instance which may give rise to a ground for exclusion, the Regional Administrative Court of Lazio, held that a contracting authority is in any case obliged to evaluate the consequences that the antitrust sanctions may have on an ongoing tender even if the nature of the ascertainment is not final. In particular, also in the light of the special guarantees required for adopting an antitrust measure (issuance by a third-party authority, compliance with the guarantees required for participating in the tender, and principle of audi alteram partem), a ground for exclusion may be found in “the mere capability of the sanctions to produce, even just temporarily, their effects, either because they have not (or not yet) been levied upon or, if challenged, because they have not been suspended, being it irrelevant that the decision to impose the sanctions was taken in an interim proceeding or in a proceeding on the merit and, in the latter case, that the decision was or not a final decision“.

Otherwise – still according to the judges of the Regional Administrative Court of Lazio –  economic operators sanctioned by AGCM would be given the possibility to escape the ground for exclusion, due to the necessary temporary delimitation of the reason for disqualification.

In light of the foregoing, the Regional Administrative Court of Lazio has deemed insufficient the reasons given by the contracting authority in relation to its decision not to exclude Manutencoop Facility from the procurement procedure, holding that the decision not to exclude the company should have been anchored to a concrete evaluation of the facts object of the imposed sanctions.

Finally, the administrative judges specified that the self-cleaning measures adopted by the sanctioned company, although unable to remedy the levied-upon sanctions, are “virtually capable” of legitimating the failed exclusion of the tenderer. However, since they were not used as grounds for the decision taken by the contracting authority, they do not justify the fact that Manutencoop Facility was not excluded.

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