Approval of the award and proof of the requirements: value of condition precedent
TAR Lazio, Rome, Section. II, 09/04/2021, n. 4190 (click here for the full sentence)
Interesting ruling by the Lazio Regional Administrative Court regarding, among other things, the procedure for forming the award deed.
Administrative judges highlight, in particular, that pursuant to articles. 32, paragraph 3 and 33, paragraph 1, of Legislative Decree no. 50 of 2016, this procedure can be considered concluded with the approval of the award proposal, formulated by the tender commission, by the contracting authority.
The award provision can, consequently, be defined as formed with the conclusion of the decision-making phase which coincides with the approval of the award which is followed by the integrative phase of the effectiveness of the (approved) provision which concludes, in turn, with the verification and proof of participation requirements.
The verification of the requirements has the value of a condition precedent ex lege of the effectiveness of the (approved) award measure.
Once the awarding measure has been adopted, the successful tenderer becomes the holder of a differentiated position compared to that of the other competitors as he is identified - among the various participants in the selection - as the effective contractor of the procurement contract to be stipulated with the administration.
At the same time, the provision damages the position of competitors who, through it, are definitively aware of the loss of the final good of life.
It follows that the verification phase of the participation requirements does not affect the formation of the award procedure, but rather the subsequent integrative phase of effectiveness and therefore, ultimately, its effectiveness which by law is precisely subject to the suspensive condition of positive verification of requirements.
Furthermore, the TAR highlights that the verification of the participation requirements for the successful tenderer, before the signing of the contract, does not exhaust the power of verification which lies with the administration and which, it must be reiterated, can be exercised at any time in the during the tender procedure and even during the negotiation relationship.
In this sense, as regards the perpetual subjection to the verification of the participation requirements, the position of the successful tenderer and that of the contractor is not distinguished from that of the other competitors since all are always subject to the aforementioned verification during the phases that concern.
