PREVIOUS EXCLUSION FROM ANOTHER RACE: DOES IT FALL WITHIN THE REPORTING OBLIGATIONS OR LESS?
Council of State, section V, 20.09.2021 n. 6407 (click here for the text of the sentence)
With the recent ruling indicated above, the judges of Palazzo Spada stated that the scope of the declaration obligations also includes an exclusion measure suffered by the competing operator in another tender procedure from another contracting authority as it arose from conduct abstractly suitable to doubt the integrity and reliability of the economic operator for the execution of the entrusted contract.
Therefore contradicting the various jurisprudential precedents, even of the same section (most recently, Cons. Stato, section V, 3 September 2021, n. 6212), in which it was instead stated that a previous exclusion does not fall within the list of circumstances to be brought aware of the contracting authority calling for the new tender, because the cause of exclusion refers - and ends - within the tender procedure in which it arose, under penalty of the risk of creating an indefinite prolongation of the "trailing" effectiveness of the first provision whereby exclusion from one tender generates exclusion from the other and so on in a continuous rebound from a procedure
In short, the uncertainty continues despite (or perhaps even because of ...) the indications provided on the matter by the Plenary Assembly, in the ruling of 28 August 2020, n. 16, which - with reference to the declaration obligations incumbent on economic operators at the time of participation in a tender procedure, specified that art. 80, 5th paragraph, letter. c) [now lit. ca bis)], is a closing rule capable of including all the facts, even those that cannot be predetermined ex ante, but in practice still have a negative impact on the integrity and reliability of the economic operator, hence the exemplary nature of the hypotheses envisaged in the lines guidelines issued on the matter by the Anac ... adding however that "in the meantime a subsequent reconstruction of the declaration obligations may be admitted, as these are cases which clearly affect the morality and reliability of the economic operator, of which the latter must have been considered aware and with respect to which no "surprise" exclusions can be configured against the same".
Simple isn't it?
