Tonucci & Partners, with Piergiuseppe Venturella and Francesco Verrastro, has obtained the victory at the Council of State in a case concerning the automatic exclusion from tenders for failure to indicate staff and safety costs.
By sentence no. 4502 dated May 21st 2024, the Council of State deleted the previous decision of Lazio Regional Administrative Court, which excluded the economic operator ranked first because of not specifying staff and security costs in the financial offer as required by law.
The Council of State decided that, in such cases, automatic exclusion is not fair as the contracting authority should have advised the economic operator to correct the error through preliminary investigation assistance. The judges had underlined that, in general, failure to indicate mandatory costs leads to automatic exclusion.
However, if this lack is caused by misleading forms provided by the contracting authority, then the possibility must be given to correct the error: in the specific case, the form used did not provide a space to enter the requested information regarding the costs and the majority of the participants in the tender had not indicated this data (the only accomplishing operator appealed to a non-provided method). Since it was impossible to correctly enter the requested data, the Council of State established that the contracting authority had to permit the correction through auxiliary regularization.
