In this lengthy interview, lawyer Pasquale Marotta – specialised in Administrative Law and Local Authorities Law, an expert on public employment, public competitions, schools, universities, health law, town planning, public contracts, expropriations, elections, and the accounting liability of public officials and administrators – talks to us about the judgment of the Campania Regional Administrative Court (TAR) no. 7202 issued following the appeal he lodged on behalf of the company SISTRI S.r.l.
by Roberta Imbimbo
Lawyer Marotta, can you tell us about the latest revolutionary ruling of the Campania TAR?
The Tar Campania – Naples, with judgment no. 7202, published on 21/11/2022, upheld the appeal lodged by my firm, on behalf of the company SISTRI s.r.l., and to that effect, annulled the tender minutes and the awarding decision of the Head of the Public Works Sector, ordering the repetition of the tender called by the Municipality of Solopaca. In a nutshell, the Municipality of Solopaca had published the call for tenders for the awarding of the contract for the ‘Hydrogeological restoration and functional recovery of the slopes, impluvi and crossings insisting on the northern side of the municipal territory – S. Aniello locality, for a total value of Euro 750,000.00. The entire procedure was conducted electronically on the Consip platform, ‘Mercato Elettronico (MEPA)’ tool. However, during the uploading phase of the documentation required to participate in the tender, the telematic platform suffered a system blockage at around 14:45/50 until 17:57, thus not allowing the company Sistri to upload the documentation related to the economic offer. Despite the various notifications submitted to the municipality by the company Sistri s.r.l. in the period between 2.45 pm and 6.00 pm, the deadline for submitting the economic offer, the contracting station (Solopaca municipality) nevertheless proceeded to award the contract to the company Sannio Appalti s.r.l.. And so the company Sistri s.r.l., through my patronage, challenged before the Campania Regional Administrative Court the decision by which the Head of the Public Works Sector of the Municipality of Solopaca approved the acts of the procedure and awarded the contract to Sannio Appalti s.r.l., raising a series of unlawfulness profiles of the procedure, including the blockage that occurred during the phase of submission of the economic offer.
In light of the defence arguments you put forward, what did the Campania Regional Administrative Court decide?
In a precautionary order of 6.10.2022, it invited Consip to provide a detailed report on the actual presence of the malfunction in the uploading of the bids on the tender portal. The report was not long in arriving and from the preliminary investigation carried out by Consip it clearly emerged that there was a generalised malfunction – concerning the uploading of files to be attached to participation in the tender – linked to infrastructural problems on the e-Procurement system, which was resolved only at 5.57 p.m. of the same day, and precisely, three minutes before the time for submitting tenders expired. In view of this, it cannot be disregarded that this event deprived the company of the opportunity to participate in the tender, without any error or negligence being attributable to the company itself, which, at 5:50 p.m. on 1/8/2022, reported the problems in uploading the files and then requested that the deadline for submitting the bids be extended (note dated 3/8/2022). On the basis of these considerations, the Naples Regional Administrative Court, in ruling no. 7202/2022, noted the system malfunction that did not allow the procedure to run smoothly, and ordered the annulment of the call for tenders and its re-issue.
