Luxembourg, 29/11/2001 (Agence Europe) - A press release from the European Court of Justice specifies that regulations and practice in Italy for public works contracts fail to comply with Community law from two main points of view. The contracting authority cannot reject as abnormally low any offer before the tenderer has had the possibility to submit all the appropriate justifications. Wrongly, the Italian law dismisses certain kinds of justification, states the press release, recalling the facts:
"The "Consiglio di Stato" must settle disputes between ANAS, the contracting authority in Italy and construction companies, excluded from certain public works contracts because their offers had been considered abnormally low. In particular, Impresa Lombardini had taken part in a contract for carrying out work to enlarge three tracks of a motorway section (Autostrada del Gra) for a basic value of 122 250 216 000 lira. The threshold of anomaly had been fixed in the case in point at 28,004% and Lombardini's offer, which comprised a discount of 29.88%, had been ruled out as abnormally low, without the company being able to provide further justification of the prices proposed other than those that it had submitted when its tender had been presented. The Mantovani company, for its part, answered a call for tenders for the building of a section of the provincial highway (Bergamo-Zanica variant) for a basic value of 15 720 000 000 lira. Here, the anomaly threshold had been fixed at 40.865% and the Mantovani offer (discount of 41.46%) had been excluded for similar reasons)".
The press release states that the Italian regulation and administrative practice make it compulsory for promoters taking part in a call for tenders to provide justification of prices offered as soon as their dossier is presented, drafted on ad hoc formulas and corresponding to at least 75% of the basic market value - otherwise their tender would be automatically rejected. The contracting authority assesses the offers made on the basis of these justifications alone, the tenderers no longer having the possibility after the envelopes containing their offers have been opened, to provide other explanations.
The Italian law gives a limited list of the justifications that the contracting authority may take into consideration - and bans tenderers from using certain types of corroboration.
According to the Court, the 1993 directive on public works contracts is aimed at guaranteeing the principles of free competition, equal treatment of tendering parties and transparency. The directive provides for detailed cross-examination verification procedure of offers considered abnormally low that the contracting authority must follow through before awarding the contract. The tenderer concerned must therefore have the possibility to prove that the offer made is a serious offer by providing more ample justification on all the elements of the dossier. The aim of this procedure is to prevent any arbitrary decisions on the part of the contracting authority and to guarantee healthy competition between firms. As a consequence of this, states the press release, rejection of the offer on the basis of justifications provided alone, on only 75% of the value of the contract in question and which must be presented, as an obligation, at the time when the dossier is presented (hence at a moment when the anomaly threshold has not yet been calculated for the contract) is not conform to the requirements of Community law.
Regarding the other, more technical aspects of Italian law (obligation to justify 75% of the market value at the same time as the offer is presented on pre-established forms and according to a method for calculating the anomaly threshold), the Court considers that these terms and conditions do not run counter to Community law in principle, as long as the aims of the directive are guaranteed and that the contracting authority is able to reconsider the result of cross examination assessment with the tenderers".