INDUSTRIES, PUBLIC PROCUREMENT | The Council of State on exclusion clauses in public tenders

Newsletter n. 90 – November 2023

INDUSTRIES

PUBLIC PROCUREMENT

The Council of State on exclusion clauses in public tenders

On 27 October 2023, the Council of State issued its Decision No. 9277 on exclusion clauses in public tender rules. The case, brought before the Regional Administrative Court of Sardinia (T.A.R. Sardinia), originated from the appeal brought by a competitor excluded from a public procedure because of its failure to meet a professional requirement which, according to the tender specifications, had to be held by “the consortium and the consortium members indicated as executors”. The Sardinian Regional Administrative Court ruled that the appeal was inadmissible (No. 382/2023), considering the failure to timely challenge the clause. The unsuccessful economic operator then requested a full revision of the judgment, claiming that the provision contained in the tender specifications could be interpreted, and applied, as not precluding the participation of a stable consortium in the procedure. The Council of State accepted the appellant’s requests and declared the clause null and void.