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Following an appeal filed, against the exclusion order, by a company that had submitted an offer of an amount corresponding to the base bid in connection with a public tender for the award of "medical assistance services for the Complex Operational Units (UUOOCC) emergency room, gynecology, pediatrics, anesthesia and resuscitation of hospital sites" of a health entity located in the Veneto Region, the Regional Administrative Court of Veneto declared unlawful the clause in the tender rules that imposed the sanction of exclusion in the presence of bids for an amount equal to or greater than the auction base.
The Panel of Judges in charge of the case found that the said clause did not comply with the purpose of the provision in Article 70 of the Public Procurement Code and did not pursue any interest worthy of protection, also in view of the fact that a bid equal to the auction base cannot expose the contracting authority/administration to unbudgeted and unallocated disbursements and is not capable of undermining the achievement of the purpose of the procedure.
In justifying its decision, the Regional Administrative Court pointed out that the prohibition for the contracting authority/administration to introduce grounds for exclusion other than those exhaustively determined by the law has been elevated to a principle of the matter under Article 10(2) of Legislative Decree 36/2023.
The Regional Administrative Court also pointed out that this prohibition should not be understood to refer only to those grounds for exclusion related to the lack of a subjective requirement of the competitor, but should be understood to refer to any provision of the lex specialis that has the effect of ousting and/or excluding the operator from the tender, outside of the hypotheses expressly typified in the public procurement code.
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