The Council of State rules again on the principle of continuity in the possession of the requirements by economic operators participating in tenders

The case submitted to the Council of State concerned the possible exclusion of an economic operator from the tender due to the supervening lack of the requirement of fiscal regularity (pursuant to Article 80 of Legislative Decree No. 50 of 18 April 2016, the Italian Public Procurement Code “IPPC”, now replaced by Article 94 of Legislative Decree No. 36 of 31 March 2023), occurred during the tender.

Based on the prevailing case law, it is excluded any power of autonomous appreciation for the Contracting Authority in reviewing the findings of the certifications issued by the competent authorities (in this case, the Revenue Agency), attesting the economic operator's regularity from the fiscal point of view. However, due to conflicting positions of case law, it was not clear whether such verification on the absence of irregularities must be carried out on the successful bidder in relation to the entire duration of the procedure, through the acquisition of certifications extended to the entire period, from the submission of the bid until the awarding of the contract.

The matter was therefore referred to the Plenary session.

The Council of State reaffirmed that the principle of the necessary continuity of the possession of the general requirements by the economic operators taking part to a tender procedure always entails the duty of each operator to promptly inform the Contracting Authority of any irregularities that may arise during the tendering procedure. It means that “an economic operator taking part in a public procurement procedure must possess, continuously, the necessary admission requirements and has the duty to declare, as from the submission of the bid, the possible lack of any of the requirements and to promptly inform the Contracting Authority of any event that might deprive him of the same” (Council of State, Plenary Session, 24 April 2024, No. 7). In particular, the principle of continuity provides that “the requirements must be possessed by the economic operator from the moment the tender application is submitted and until the signing of the of the contract and then again until the fulfilment of the contractual obligation” (Council of State, Plenary Session, 24 April 2024, No. 7).  

Although the IPPC does not expressly provide for a duty to notify the Contracting Authority of any grounds for exclusion occurring after the submission of the tender application, the relative duty to declare must be linked to the “principles of cooperation and good faith”, characterising relations between citizen and public administration provided by the General Administrative Procedure Law (Article 1, Law No. 241 of 7 August 1990). 

At the same time, the Contracting Authority has a duty to verify the continuous fulfilment of the requirements throughout the reference period, excluding at any time any economic operator who has lost the requirement in the course of the procedure.