N. Sent Reg 5442/08.
N. Ric 1955/2000 Reg.
N. Ric 1955/2000 Reg.
ITALIAN REPUBLIC ON BEHALF OF THE ITALIAN PEOPLE
Regional Administrative Court of Lombardy
(Section III)
gives the following Judgement
on No appeal RG 1955/2000, as proposed by PMCSrl, in the person's legal representative, Dr. Alessandro Porta, represented and defended by the lawyer. Tiziano Ugoccioni and with an address at the offices of the same, in Milan, Via Boccaccio 19
against the City of Canterbury, in the person of the mayor pro tempore, represented and defended by lawyers and Massimo Armando Cimolino Bottinelli and with an address at the second study, in Milan, Via Monte Nero 78
and against
Corporate Trade Service Srl, in its legal representative pro tempore, Mr.. Elio Nicolosi, represented and assisted by Stefano Zamponi, Maria Antonia and Filippo Poggi Carimati and with an address at the office of the same, in Milan, via Beccaria 5
for cancellation, after suspension,
-determination, signed by the Area Manager of Human Services City of Canterbury, n. 37, March 6, 2000, concerning the award of tender by private agreement for the purchase of software applications for the Social Services Department and the management of activities related to the Project "Pegasus", financed by regional funds ex-285 ln / 1997;
- of all the bid documents relating to the award of that supply, in particular the reports arising from the Commission on December 21, 1999 and February 16, 2000, and the technical report of the Head of the CED of the City of Canterbury dated March 9, 2000;
- determining management No 2702 February 17, 1999, which was opened by private treaty after the aforementioned race unofficially, and the subsequent laying the lex specialis of the same race;
- to a standard internal regulations to the City of Canterbury which recognizes the same sector managers, or to the same official, to hold the insolvency proceedings for the award of supplies / services, to participate, as President and / or member of the Commission, to fulfill these duties, to have the approval of the procedures insolvency in question, assessing the legality and compliance with rules established by the lex specialis;
-connected to any other act, condition or consequential
- of all the bid documents relating to the award of that supply, in particular the reports arising from the Commission on December 21, 1999 and February 16, 2000, and the technical report of the Head of the CED of the City of Canterbury dated March 9, 2000;
- determining management No 2702 February 17, 1999, which was opened by private treaty after the aforementioned race unofficially, and the subsequent laying the lex specialis of the same race;
- to a standard internal regulations to the City of Canterbury which recognizes the same sector managers, or to the same official, to hold the insolvency proceedings for the award of supplies / services, to participate, as President and / or member of the Commission, to fulfill these duties, to have the approval of the procedures insolvency in question, assessing the legality and compliance with rules established by the lex specialis;
-connected to any other act, condition or consequential
and order
administration to pay damages, ex art. 35 of Legislative Decree no. 80/1998
CONSIDERING the appeal with its attachments;
view of the application for suspension of the contested measures, presented as a preliminary issue by the plaintiff;
VISAS acts of formal proceedings of the City of Canterbury and the Corporate Trade Service Srl;
VIEW Ordinance No. 1732/2000 of 26 May 2000, rejecting the application for the suspension;
CONSIDERING the pleadings and documents submitted by the parties;
seen all the documents in the case;
appointed rapporteur, public hearing on May 22, 2008, the Legal secretary dr. Peter De Berardinis and heard the same; HEARING
also made some parts of the prosecutors, as the minutes;
The facts and law considered in the following
CONSIDERING the appeal with its attachments;
view of the application for suspension of the contested measures, presented as a preliminary issue by the plaintiff;
VISAS acts of formal proceedings of the City of Canterbury and the Corporate Trade Service Srl;
VIEW Ordinance No. 1732/2000 of 26 May 2000, rejecting the application for the suspension;
CONSIDERING the pleadings and documents submitted by the parties;
seen all the documents in the case;
appointed rapporteur, public hearing on May 22, 2008, the Legal secretary dr. Peter De Berardinis and heard the same; HEARING
also made some parts of the prosecutors, as the minutes;
The facts and law considered in the following
FACT
The applicant company PMCSrl, to be exhibited owner of a software called "SOCIAL SERVICES 2000 SW" on the integrated management in Windows, the information system for the municipal sector social services.
This software, created and developed in 1989, subject to patent protection and under LN 633/1941, is a unique program of its kind awarded in 1994 by the Italian Association of Medical Informatics Federservizi.
In 1999 the City of Canterbury has:
- initially requested information about the system just mentioned;
- then participated with the Manager of Social Services, the demonstration of this software took place at the SMAU 1999 (exhibition sector), acquiring at that time an offer of sale of that software for a total of £. 16,000,000 excluding VAT
- then, after other contacts and after the bid had been confirmed and further demonstrations were made of software, sent a letter to the exponent of invitation to participate in private negotiations for the purchase of software applications for the social services sector. " In such a letter of invitation was accompanied by a special procedure, but, according to the plaintiff, the City would never specified that the race was concerned, as well as the provision of the said application software, including contracting for the management of activities the "Pegasus Project", financed by regional funds ex ln 285/1997.
exponent, complains that the tender was made with clear reference to the contents of the software referred to several times the exponent itself had provided evidence the City, as evidenced by the amount placed with a starting price (equal to just £. 16,000,000 excluding VAT). The launching of the tender was already, therefore, unlawful for violation of equal conditions and the confidentiality of tenders, being, as said, the contracting aware for some time the content of the economically and quality of design of today's applicant.
Nevertheless, PMCSrl make an offer notice to the Directors from examining the offerings of other products prepared in violation of its patent agent and ln 633/1941. This, as there was a suspicion that circulated a product the result of plagiarism software operated on the same PMC. In a note received by the company
exponent March 31, 2000 (in advance via fax the day before), the City of Canterbury broadcast the proceedings of the jury (the minutes of December 21, 1999 and February 16, 2000), the report prepared by the State Commissioner for the City of CED on the assessment of the technical part of bids, no leadership and determination 37, March 6, 2000, on the award the contract to the firm Corporate Trade Service Srl in Milan. This documentation
several profiles that have emerged, according to the exponent, show an unlawful infringement of its interests due the work of the Administration.
Among other aspects, the member states in particular that February 16, 2000, the Commission has assessed the technical part of bids, to this end, referring to the report prepared by the head of the CED: this, however, is dated and signed in On March 9, 2000, and is, therefore, back to the same measure for the award. The Commission would, therefore, expressed the score on the technical side, referring to an opinion at this point does not exist
against the bid documents and the consequent decision to award the PMCSrl thus arisen, against which the appeal mentioned in the headnote and request 'annulment after suspension of operation.
In support of appeal put forward the complaints to:
- breach of proper tendering procedure, and the general principle of confidentiality of tenders and a level playing field among competitors and excess power to misrepresentation of the facts and law and misuse, because the PA would have turned first to learn about all aspects of technical / application software proposed by the applicant, as well as its price, and then he would be invited to tender by tender, as if Ente local is not already known the contents of the offer;
- ln violation of 142/1990 and general rules governing contracts the PA, and disregard for the proper procedure for approval of bid documents and the general principles of control and transparency of the determinations regarding the contracts of the PA, since the same employee of the City (the Director of Area) opened the race, was in the his conduct as President of the Commission and approved the entire tendering procedure, then provides the formal award of the contract;
- breach, misrepresentation, misapplication of Article. LN 56 of 142/1990 as amended by art. 14 of LN 265/1999 of incompetence and abuse of power, because the competent adoption of the measure would award the council Hall and not the manager, being reserved to the political authority monitoring compliance with the procedural rules governing the race;
- infringement, misrepresentation and non-application. 41, RD No. 827 of 1924, and the presidential decree No. 573/1994 and art. 9 of the Decree. No 358/1992 and abuse of power for breach of proper procedure, for misrepresentation of the facts and law, for lack of investigation and absolute violation of privacy rights and protection of existing software on the applicant because, under existing Community and national legislation, as the software requested by the City would be protected by an exclusive right, except that the City avrebbe dovuto procedere ad acquistarlo direttamente dalla ricorrente a trattativa privata;
- violazione del corretto procedimento di gara, eccesso di potere per aver la P.A. affidato alla controinteressata anche la gestione delle attività legate al "Progetto Pegaso" finanziato con fondi regionali ex l. n. 285/1997, senza avere però svolto al riguardo alcuna gara ufficiosa, e per avere dato atto, nella determinazione di aggiudicazione, che tale gara è stata invece svolta; eccesso di potere per avere la Commissione proceduto alla valutazione della "parte tecnica" dell’offerta della ricorrente in assenza di una relazione tecnica; eccesso, sviamento ed abuso di potere per avere la Commissione proceduto alla valutazione della "parte tecnica" dell’offerta presentata dalla ricorrente sulla base di una relazione redatta in un momento successivo sia all’attribuzione del punteggio, sia alla determinazione di aggiudicazione; eccesso di potere per carenza assoluta di motivazione in ordine all’attribuzione del punteggio per il parametro della qualità della progettazione; violazione del principio di collegialità decisionale della Commissione.
La società ricorrente ha presentato, inoltre, domanda di risarcimento del danno conseguente all’eventuale mancata esecuzione della fornitura oggetto della gara, individuato in via minimale nel mancato utile della fornitura ineseguita.
Sul punto, nella memoria finale ha provveduto a quantificare il danno risarcibile, in terms of loss of profit suffered by the non-execution of the contract, the rate of 10% of the value and therefore won € 1,500.00, in addition to currency appreciation - to be calculated until the filing of the judgment - and interest until payment or in terms of loss of opportunity suffered by the applicant it, the rate of 10% awarded the tender, cut in half by the number of bidders (two).
It is an action against the City of Canterbury, filed a statement which called for the rejection of the appeal, including the question of damages, after rejection, also supervision of the instance, for lack a prima facie case and the danger in delay.
is before the court, in addition, the Corporate Trade Service Srl, submit a statement in which, after having contested the allegations of the applicant, in particular the fact that the software it was covered by patents, has applied for the dismissal of Appeal and request for an injunction unit.
in chambers on 26 May 2000, the Board, considered at first sight the absence of the alleged breach of procedure for the award of merit whose function is the examination of complaints about incorrect technical assessment programs, with order No. 1732/2000 rejected the application for the suspension.
Close hearing responsible to the applicant and the council has submitted pleadings and documents.
public hearing of May 22, 2008 the case was retained in the decision.
This software, created and developed in 1989, subject to patent protection and under LN 633/1941, is a unique program of its kind awarded in 1994 by the Italian Association of Medical Informatics Federservizi.
In 1999 the City of Canterbury has:
- initially requested information about the system just mentioned;
- then participated with the Manager of Social Services, the demonstration of this software took place at the SMAU 1999 (exhibition sector), acquiring at that time an offer of sale of that software for a total of £. 16,000,000 excluding VAT
- then, after other contacts and after the bid had been confirmed and further demonstrations were made of software, sent a letter to the exponent of invitation to participate in private negotiations for the purchase of software applications for the social services sector. " In such a letter of invitation was accompanied by a special procedure, but, according to the plaintiff, the City would never specified that the race was concerned, as well as the provision of the said application software, including contracting for the management of activities the "Pegasus Project", financed by regional funds ex ln 285/1997.
exponent, complains that the tender was made with clear reference to the contents of the software referred to several times the exponent itself had provided evidence the City, as evidenced by the amount placed with a starting price (equal to just £. 16,000,000 excluding VAT). The launching of the tender was already, therefore, unlawful for violation of equal conditions and the confidentiality of tenders, being, as said, the contracting aware for some time the content of the economically and quality of design of today's applicant.
Nevertheless, PMCSrl make an offer notice to the Directors from examining the offerings of other products prepared in violation of its patent agent and ln 633/1941. This, as there was a suspicion that circulated a product the result of plagiarism software operated on the same PMC. In a note received by the company
exponent March 31, 2000 (in advance via fax the day before), the City of Canterbury broadcast the proceedings of the jury (the minutes of December 21, 1999 and February 16, 2000), the report prepared by the State Commissioner for the City of CED on the assessment of the technical part of bids, no leadership and determination 37, March 6, 2000, on the award the contract to the firm Corporate Trade Service Srl in Milan. This documentation
several profiles that have emerged, according to the exponent, show an unlawful infringement of its interests due the work of the Administration.
Among other aspects, the member states in particular that February 16, 2000, the Commission has assessed the technical part of bids, to this end, referring to the report prepared by the head of the CED: this, however, is dated and signed in On March 9, 2000, and is, therefore, back to the same measure for the award. The Commission would, therefore, expressed the score on the technical side, referring to an opinion at this point does not exist
against the bid documents and the consequent decision to award the PMCSrl thus arisen, against which the appeal mentioned in the headnote and request 'annulment after suspension of operation.
In support of appeal put forward the complaints to:
- breach of proper tendering procedure, and the general principle of confidentiality of tenders and a level playing field among competitors and excess power to misrepresentation of the facts and law and misuse, because the PA would have turned first to learn about all aspects of technical / application software proposed by the applicant, as well as its price, and then he would be invited to tender by tender, as if Ente local is not already known the contents of the offer;
- ln violation of 142/1990 and general rules governing contracts the PA, and disregard for the proper procedure for approval of bid documents and the general principles of control and transparency of the determinations regarding the contracts of the PA, since the same employee of the City (the Director of Area) opened the race, was in the his conduct as President of the Commission and approved the entire tendering procedure, then provides the formal award of the contract;
- breach, misrepresentation, misapplication of Article. LN 56 of 142/1990 as amended by art. 14 of LN 265/1999 of incompetence and abuse of power, because the competent adoption of the measure would award the council Hall and not the manager, being reserved to the political authority monitoring compliance with the procedural rules governing the race;
- infringement, misrepresentation and non-application. 41, RD No. 827 of 1924, and the presidential decree No. 573/1994 and art. 9 of the Decree. No 358/1992 and abuse of power for breach of proper procedure, for misrepresentation of the facts and law, for lack of investigation and absolute violation of privacy rights and protection of existing software on the applicant because, under existing Community and national legislation, as the software requested by the City would be protected by an exclusive right, except that the City avrebbe dovuto procedere ad acquistarlo direttamente dalla ricorrente a trattativa privata;
- violazione del corretto procedimento di gara, eccesso di potere per aver la P.A. affidato alla controinteressata anche la gestione delle attività legate al "Progetto Pegaso" finanziato con fondi regionali ex l. n. 285/1997, senza avere però svolto al riguardo alcuna gara ufficiosa, e per avere dato atto, nella determinazione di aggiudicazione, che tale gara è stata invece svolta; eccesso di potere per avere la Commissione proceduto alla valutazione della "parte tecnica" dell’offerta della ricorrente in assenza di una relazione tecnica; eccesso, sviamento ed abuso di potere per avere la Commissione proceduto alla valutazione della "parte tecnica" dell’offerta presentata dalla ricorrente sulla base di una relazione redatta in un momento successivo sia all’attribuzione del punteggio, sia alla determinazione di aggiudicazione; eccesso di potere per carenza assoluta di motivazione in ordine all’attribuzione del punteggio per il parametro della qualità della progettazione; violazione del principio di collegialità decisionale della Commissione.
La società ricorrente ha presentato, inoltre, domanda di risarcimento del danno conseguente all’eventuale mancata esecuzione della fornitura oggetto della gara, individuato in via minimale nel mancato utile della fornitura ineseguita.
Sul punto, nella memoria finale ha provveduto a quantificare il danno risarcibile, in terms of loss of profit suffered by the non-execution of the contract, the rate of 10% of the value and therefore won € 1,500.00, in addition to currency appreciation - to be calculated until the filing of the judgment - and interest until payment or in terms of loss of opportunity suffered by the applicant it, the rate of 10% awarded the tender, cut in half by the number of bidders (two).
It is an action against the City of Canterbury, filed a statement which called for the rejection of the appeal, including the question of damages, after rejection, also supervision of the instance, for lack a prima facie case and the danger in delay.
is before the court, in addition, the Corporate Trade Service Srl, submit a statement in which, after having contested the allegations of the applicant, in particular the fact that the software it was covered by patents, has applied for the dismissal of Appeal and request for an injunction unit.
in chambers on 26 May 2000, the Board, considered at first sight the absence of the alleged breach of procedure for the award of merit whose function is the examination of complaints about incorrect technical assessment programs, with order No. 1732/2000 rejected the application for the suspension.
Close hearing responsible to the applicant and the council has submitted pleadings and documents.
public hearing of May 22, 2008 the case was retained in the decision.
LAW
The plaintiff contests the outcome of the race unofficially by the City of Canterbury has won the Corporate Trade Service Srl defendant, the provision of application software for the Social Services Department and management of activities related to Project Pegasus "financed by regional funds, according to the LN 285/1997.
The first ground of appeal alleges infringement of the principle of confidentiality of tenders and the level playing field between competitors, as the City of Canterbury, who seguito di trattative intercorse aveva già avuto modo di conoscere – in una epoca precedente all’indizione della gara – contenuto e caratteristiche tecniche ed economiche del software e, pertanto, dell’offerta della ricorrente, avrebbe poi strutturato la lex specialis facendo chiaro riferimento al contenuto di tale offerta (tanto che anche il prezzo a base d’asta coincide con l’importo indicato in sede di trattative dalla società).
In tal modo la procedura concorsuale indetta dalla P.A. non avrebbe rispettato il requisito della segretezza, giacché tanto il Comune, quanto gli altri concorrenti, sarebbero stati pienamente (ed anticipatamente) a conoscenza del contenuto della offerta che la ricorrente avrebbe (Re) proposed. It would have been so violated, also, a level playing field with other potential competitors, since they were in a position - by the content of the special - to know the opponent's offer, previously made public at the City.
In a document lodged with a view to the public hearing, the PMCSrl also noted that the principle of secrecy of the deals was also infringed another point of view. In particular, it would have contravened the rule that, judged by the criterion in the procurement of the most economically advantageous tender, the tender price must remain secret at the time of evaluation of technical offers, in order to prevent such an assessment may be calibrated according to the price offered by either competitor. In this case, however, the price offered by the applicant was already known in advance, at least to the City.
Finally - and always in the final memory - the company notes that the City of Canterbury would have violated the rule, under which shall be taken after comprehensive assessment of the technical bids submitted by competitors well in advance to assess their financial offers.
In this regard, should be scrutinized prior to the exceptions for rejection of the plea made by the strong defenses of the City and the defendant on the ground of intervening acquiescence of the applicant: acquiescence is inferred that the applicant itself from having participated wholeheartedly in the negotiations (with the unofficial race).
Exceptions can not be shared.
In this regard, the Board notes that, according to the settled line of decisions, are ineligible for acquiescence occurred, the complaints raised by the appeal court by one party to an invitation by private agreement, if the applicant, first , has placed based on these complaints to challenge the use of such an instrument for selecting the contractor for failure to lawful conditions for choosing the type of competition, and, second, the same participant claims to have applied to participate in the tender in question, pointing out, clearly and unequivocally, that it will accept the tender selected by the type of proceeding (see, ex multis, CdS, Sec. V, 9 October 2003, No 6072).
However, in this case, it is clear from the wording of the complaint that the plaintiff does not question the use of private treaty as a means of choosing the contractor, nor the absence of the lawful conditions the choice of this selection method. Context, rather, the overall behavior of the municipality, which, on the one hand, he insisted on acquiring information about the contents of the offer of the company, and on the other hand, once acquired the same, instead of proceeding to the immediate conclusion of the supply contract with the company, he issued an invitation to the record, pointing to such technical and economic characteristics of the product to be supplied, just those resulting from the information gathered at today's event.
Since, then, what is the company regrets the fact that the lex specialis recall the bid requirements as announced previously by the company to the city, according to the College of censorship is not the challenge of investing conditions to proceed with contractor selection by private treaty (with the unofficial race), but the correctness and procedural legality of the process followed in practice. Hence the admissibility of the complaint (see Highway Code, Sec. V, 18 March 2004, No. 1424).
However, the same complaint is unfounded
Indeed, in a first aspect the records on file at all fails to confirm the thesis of PMCSrl, that would be the City of Canterbury to look (earnestly) to contact the company, to acquire information the characteristics of the software provided by this and would introduce it in an expectation that the conclusion of a contract. The documents filed by the applicant in this regard are all from the same show and, if anything, an initiative the company's constant (Which are consistent with its for-profit) of interest to the City to purchase their product.
In particular, there is nothing in the evidence placed in proceedings that it was the City of Canterbury to get a quote prior to PMCSrl (upon which model the characteristics of the product subject to tender) and to insist that the companies were demonstrations the operation of the software.
In any case, the company certainly knew the rules that govern the procedures for procurement of goods, products, services by the PA and thus could not place any reliance on the fact that any negotiations that occurred could be enough to reach the immediate conclusion the contract without any competitive process. In this sense, indeed, the applicant would have to wait to contacts with the City - they were real negotiations or more plausibly, as we shall see, mere exploratory surveys of the market - would follow a competitive process and based on that expectation would have to weigh carefully the information that it was appropriate to provide.
In another aspect, then, the type of activity in this regard by the PA does not seem to be overstepping investigation and / or market research, which performs the same operation that the PA functions with opportunities, in order to ascertain the willingness of operators to provide proposals and / or solutions appreciable in relation alle esigenze rappresentate dalla P.A. stessa. Invero, sarebbe insensato che l’Amministrazione, dopo aver effettuato indagini informali di mercato, non tenesse in nessun conto i risultati di queste al fine dell’elaborazione degli atti di gara. Appare, quindi, del tutto ragionevole che il Comune di Cantù abbia tenuto conto di quanto appreso in occasione della partecipazione dei propri dipendenti alla SMAU (che, com’è noto, è manifestazione fieristica del settore rivolta alla generalità degli operatori dell’informatica).
Infine, da nessun elemento si ricava che la controinteressata fosse consapevole che i termini tecnici ed economici dell’offerta indicati nella lettera di invito, in realtà, sarebbero were the terms of the offer made earlier to the City of Canterbury of the present appellant.
For this verse - that of violation of the principle of a level playing field competitorum - the complaint is therefore unfounded.
As for the allegations contained in the final memory, in the opinion of the Board of these, far from being mere explanation of the initial complaints, there are new allegations as true and are, therefore, ineligible.
Please note, in fact, that according to the law that the complaints are inadmissible in a memory has not been notified to the other party not only where are totally new and unrelated to the comments contained in the application, but if you recall a legally existing plea in the application, however, introduce and, in fact, new elements not originally specified, in breach of the term decadenziale and the adversarial principle (see , ex multis, TAR Calabria, Catanzaro, Sec. II, November 9, 2003, No. 3447, Highway Code, Sec. IV, 15 September 2006, No. 5385, id., August 10, 2004, n. 5513).
Moving on to examine the second ground of appeal, with it complains that a single employee of the City of Canterbury (the Manager of Human Services) has announced the contest, participated in it as President of the Commission and approved the acts of the entire proceedings, by providing, then, the formal award of the contract.
This would have violated the general principles that govern the contractual activity of the PA, which do not allow a single official match in the tasks of "controlled" and "controller".
The complaint is unfounded.
The Court has, in fact, repeatedly stated that Article. 6, paragraph 2, of ln 127/1997, in story-telling art. 51 of LN 142/1990, has put the leaders' responsibility for the procurement procedures "(as well as president of its evaluation commission) and the awarding of contracts (In the same way it is now art. 107, paragraph 3, letter. A) b) c) of Legislative Decree no. 267/2000). Although it is left to the managers responsible for these procedures, it follows that the same responsibility as well the correlative power of approval with regard to the technical verification and legitimacy of the bid documents, then reconnect to this refinement of the process to which procedural can only rejoin the full responsibility of the official (CdS, Sec. V, September 26, 2002, No. 4938, id., May 6, 2002, No. 2408, id., April 12, 2001, n. 2293).
It follows that the law does not foresee any incompatibility against the official who, in virtue of the office coated, performs the functions of President of the authority of the contract and is then competent to approve the bid documents (CdS, Sec. V, No. 4938/2002, cit.).
In exactly the same terms should then address the third ground of appeal, with which it is clear that the award would be affected by an act of incompetence, as adopted by the Manager of Human Services, instead of by the City Council (which its jurisdiction would lie in deference to the need to restrict the political power to ensure compliance with the procedural rules governing the race).
The point is simple fact argue that the award of a public tender is a measure of management. As such, according to the division of powers established by Legislative Decree no. 267/2000, it is reserved to the competence of the manager in the sector and not the elected bodies or of the local politicians, the latter of which is given the task of address, which consists in setting general guidelines to be followed by the PA , and the objectives to be pursued by management activities (CdS, Sec. V, August 29, 2006, n. 5047).
It also alleges the invalidity of the third ground of appeal. Coming
examination of the next ground of appeal, it is observed that the applicant alleges infringement of Article. 41, RD No. And the presidential decree No. 827/1924 573/1994 (which refers to the point at the Guidelines and in particular art. 9, paragraph 4, of Legislative Decree no. No 358/1992): Rules applicable to the case in question, since the provision of value below the threshold Community.
According to these provisions, there shall be direct procurement of supplies, for reasons relating to the protection of exclusive rights can only be offered by a particular individual or entity.
In this case, because the software required by the contracting authority would be protected by an exclusive right, and by the patent law and the protection of copyright, the City should have made the conclusion directly with PMCSrl, owner of its patent.
The complaint is inadmissible, however, unfounded.
In the first place you find that the complaint at issue here is alleged the existence of the lawful conditions for selecting the method of selection of private treaty through unofficial race.
Based on case law cited above, with reference to the first ground of appeal, it must therefore be concluded that the appellant's participation in the unofficial race has involved substantial acquiescence in his decision to call the race. From that acquiescence is apparent, therefore, the unacceptability of the complaints concerning the decision to use the ABOVE-MENTIONED method of selection of the contractor, instead to the direct award.
In any case, the complaint is unfounded, at least in two respects.
Indeed, in the first instance the applicant has not provided any response to the affirmation of the existence of evidence in his favor, a patent law, nor in any way to prove the intention expressed in the application, to activate the appropriate locations judicial protection of the program. It is a nullifying
profile, because if it is true that in the administrative process does not apply the general principle, be inferred from Articles. 2697 cc and 115 of the CPC, that it is for those who act in court to prove the facts forming the basis of claims made rather than the rule applies and the burden del principio di prova (T.A.R. Lazio, Roma, Sez. III, 18 gennaio 2006, n. 324), è però altrettanto vero che nelle ipotesi, come quella qui in esame, in cui siano nella disponibilità della parte interessata gli elementi di prova atti a sostenerne la domanda giudiziale, il principio sull’onere della prova ex art. 2697 c.c. conserva integro il suo valore (C.d.S., Sez. VI, 2 marzo 2004, n. 973; T.A.R. Lazio, n. 324/2006 cit.). In ogni caso, alla luce di quanto riportato, si deve concludere che la ricorrente non abbia fornito nemmeno un principio di prova (per es. depositando gli atti comprovanti l’azione in sede giudiziaria a tutela del diritto di brevetto, che aveva manifestato di voler proporre).
Sotto un altro aspect, then, it appears from the bid documents the diversity of the applicant's product and that of the other party, such as to ensure that there has been violations of '(unproven) property right. In particular, the technical report of the Head of the CED, as will be seen later, has highlighted the differences between their two products. For this verse, then, emerges the foregoing complaint is unfounded. Coming
Finally, examination of the fifth and last ground of appeal, the appellant states with it a host of grievances against the tender process. In particular:
a) the award would act unlawfully and falsely given extension of the subject of race in the management of activities related to the cd. Project Pegasus, whereas the extension would not be inferred from the letter of invitation, nor in the special, the minutes of the race or the technical report, so that, on closer inspection, the expectation would be for this part occurred even without competition;
b) the Commission did not explain the reasons for the award, in relation to the parameter of the quality of design, only 50 points to it, compared with 53 assigned to the defendant;
c) the technical report, bearing the date March 9, 2000 would be back to the stage of allocation, by the Commission of the scores for the technical part of the offer (which took place on February 16, 2000) and even the same determination for the award, dating back to March 6, 2000;
d) the above-mentioned technical report would be totally inappropriate to support an adequate proceedings relating to the technical part of the proposed software, it would act as general, very weak and full of errors and the technical terminology (analytical error identified in Sec. 6 of the party made the application);
e) finally, the technical opinion of the Commission would be incomplete because, while being part of two members as "experts", that opinion was given to only one of them (the Head CED of the City, author of the technical report for the note disputed).
None of the above complaints, which is articulated in the fifth ground of appeal, can be shared.
regard to point a), it is stressed that the determination of the award indicates the subject of the award to purchase the same software application for the Social Services Department "for managing the activities of the project" Pegasus ", funded by regional funds pursuant to law (sic) No 285/1997. "
This wording confirms the assumption of communal defense, for which in this case at issue, the Administration has done to award the Corporate Trade Service Srl supply application software for the Social Services Department, but merely to point out that this software can handle, among other things, the social activities of Project Pegasus. "
use, the measure for the award, the word "also" allows, therefore, to believe that - contrary to the assumption of the applicant - the subject of race was always just the provision of application software for the Social Services Department: Software which has, among its features, that can be used for social activities of the project in question.
In other words, the activities of the Project Pegasus is to be considered included among those for which use the software object of the game, since, as recalled its determination to negotiate No 155/ss.ss. On December 14, 1999 (cited in the list of companies eligible for competition: see doc. 8 City Council), the Offices of Social Services Department had just the need to provide "a specific application software for the social sector, particularly suitable to manage the activities in implementation of the Pegasus Project .... "
regard to point b), it must be considered together with c) and d), given the close interdependence that binds the complaints described in those paragraphs.
regard must first be challenged in the judicial review in order to findings made by the Commission discretionary technical notice in the comparative assessment of tenders, can only be limited to verifying whether or not an index is not indicative of the proper exercise of discretion in this case the lack of reasoning, illogical manifest incorrectness of the facts, inconsistency of the procedure evaluation and its outcomes (CdS, Sec. V, October 12, 2004, No 6566).
However, with regard to the complaint stated above in point b), namely the PA have not explained why it was awarded for the technical part of bids, the defendant, a score (53 points) greater than that attributed to PMCSrl ( 50), it should be noted that these are clearly unfounded complaint, because in reality the Commission as regards the assessment technique, referred to the report of the Head of the CED, completing therefore the burden of justifying their own choices, through motivation to other documents.
In other words, in this case, the Commission's choice in the technical evaluation of tenders is free of all those indices symptomatic of improper exercise of power that have been reported earlier.
In particular, there is - contrary to the assumption of the applicant - no lack of motivation as the reason for the different scores assigned to the technical part of the two products (that of the applicant and that of the other party) is gathered the Commission in being called (and appropriate) to the assessment made by the Head of the CED in its report. For the effect, there is complete consistency between the evaluation procedure followed and the results thereof.
regard to point c), apart from the documentation produced by the defense last city, it is clear that, in this case, the fact that the technical report of the Head of the CED is dated March 9, 2000 is the result of a mere clerical error and not compromising in any way with the Commission (which, according to the applicant, in such a way would have given an opinion does not exist at the time and written only in retrospect).
supporting the thesis of the clerical error - Such as to conclude that the effective date of the report is February 9 and March 9, 2000 - lay, in fact, the two elements that are exposed below.
1) First, the fact that the date indicated in the report is "09:03:00": this makes it very likely that there was a mistake of typing ("09:03:00" instead of "09:02:00"); in Indeed, the thesis of the clerical error would have been much less credible if the date had been referred to as "March 9, 2000" instead of "February 9, 2000."
2) Secondly, the very fact that the minutes of the Commission dated February 16, 2000 recall as Annex "A" and an integral part of decisions made by the Commission in the allocation of scores for the technical aspects of tenders, the report of the Head of the CED, goes to show, contrary to the assertions of the applicant, at that date - February 16, 2000 - the report itself there. Even this way, then, acquires credibility of the argument and consideration of the factual error of 9 February 2000 as the effective date of that report. Having the opposite opinion, at this point, be dall'impugnativa surrogate for the aforementioned false report of 16 February 2000: not contested, however, is given by the applicant.
In relation to paragraph d) above summary - presence in the report of the Head of C.E.D. di numerosi errori tecnici e terminologici, che ne infirmerebbero la validità e l’attendibilità – osserva il Collegio che la citata relazione si presenta chiara, esauriente e ben motivata, mettendo essa in evidenza, al di là di possibili improprietà terminologiche – non tali, però, da renderla inattendibile – le ragioni che hanno condotto a preferire l’offerta della controinteressata.
Ciò risulta particolarmente da alcuni passaggi della relazione, e precisamente da quello in cui sono sottolineati i punti deboli del software applicativo proposto dall’odierna ricorrente (ridotto utilizzo del programma, sua debolezza in termini di sicurezza, mancata attivazione di alcune funzioni richieste dal capitolato, ecc.) e dal periodo finale in cui i due prodotti vengono messi a confronto. A seguito di tale confronto, viene infatti evidenziato che il software della controinteressata – a propria volta non privo di punti deboli, puntualmente indicati dalla relazione, il che rafforza l’attendibilità di questa – è prodotto decisamente superiore all’altro dal punto di vista dell’analisi e della funzionalità, "in quanto meglio progettato e sviluppato in modalità più organica e precisa". Inoltre, esso permette di sicuro "una rappresentazione grafica più omogenea, sicura e controllata ed agevola l’utente nell’utilizzo" (profilo, quest’ultimo, di particolare rilevanza).
To the extent that is unacceptable judicial review of that assessment, it is entirely immune to those profiles - inconsistent, illogical, and so on. - Who are more symptomatic of the above-mentioned indexes not proper exercise of discretionary power and technical evaluation.
Nor can we underestimate how much the defense of the defendant, acutely observed, that, in matters of information technology products, the length of the product, especially when it comes to software, is a defect and not an asset, since it is a common experience the increasing speed of the processes through which these products become technologically obsolete.
In this respect, then, the applicant's own statements, in particular that the software offered by it was prepared in 1989 and then as many as 11 years before the date on which the facts of the case, incorporate a true declaration of the inadequacy and obsolescence confessors the product itself: What constitutes a further indication of the validity and reliability of the report alleged.
Finally, as in point c), concerning the conduct of technical evaluation by one of the two members of the Commission designated as "experts", it is sufficient to note that in contrast, since the entire jury has been called up and espoused, the minutes of the February 16 2000, la relazione del Responsabile del C.E.D., ne deriva che detta relazione è stata condivisa, proprio nel suo contenuto tecnico, anche dall’altro "esperto" della Commissione (oltre che dai restanti componenti di questa).
Debbono, infine, essere dichiarate inammissibili, quali censure nuove, sollevate per la prima volta nella memoria finale, le doglianze concernenti:
- l’essere il Responsabile del C.E.D. del Comune un imprenditore del settore;
- il non avere il Presidente della Commissione contribuito in alcuna maniera alla valutazione delle offerte;
- il fatto che il collegio avrebbe dovuto essere costituito da un numero dispari di componenti, ciò che nella fattispecie non sarebbe avvenuto.
Ultimately, the appeal is unfounded as a whole and, as such, must be rejected.
should also be declared inadmissible the application for compensation made by the applicant, being eligible for compensation only if the action is successfully cultivated the proceedings for annulment of the unlawful measures challenged promptly (CdS, AP, March 26, 2003, No. 4) .
expenses are paid following the unsuccessful, as the device.
The first ground of appeal alleges infringement of the principle of confidentiality of tenders and the level playing field between competitors, as the City of Canterbury, who seguito di trattative intercorse aveva già avuto modo di conoscere – in una epoca precedente all’indizione della gara – contenuto e caratteristiche tecniche ed economiche del software e, pertanto, dell’offerta della ricorrente, avrebbe poi strutturato la lex specialis facendo chiaro riferimento al contenuto di tale offerta (tanto che anche il prezzo a base d’asta coincide con l’importo indicato in sede di trattative dalla società).
In tal modo la procedura concorsuale indetta dalla P.A. non avrebbe rispettato il requisito della segretezza, giacché tanto il Comune, quanto gli altri concorrenti, sarebbero stati pienamente (ed anticipatamente) a conoscenza del contenuto della offerta che la ricorrente avrebbe (Re) proposed. It would have been so violated, also, a level playing field with other potential competitors, since they were in a position - by the content of the special - to know the opponent's offer, previously made public at the City.
In a document lodged with a view to the public hearing, the PMCSrl also noted that the principle of secrecy of the deals was also infringed another point of view. In particular, it would have contravened the rule that, judged by the criterion in the procurement of the most economically advantageous tender, the tender price must remain secret at the time of evaluation of technical offers, in order to prevent such an assessment may be calibrated according to the price offered by either competitor. In this case, however, the price offered by the applicant was already known in advance, at least to the City.
Finally - and always in the final memory - the company notes that the City of Canterbury would have violated the rule, under which shall be taken after comprehensive assessment of the technical bids submitted by competitors well in advance to assess their financial offers.
In this regard, should be scrutinized prior to the exceptions for rejection of the plea made by the strong defenses of the City and the defendant on the ground of intervening acquiescence of the applicant: acquiescence is inferred that the applicant itself from having participated wholeheartedly in the negotiations (with the unofficial race).
Exceptions can not be shared.
In this regard, the Board notes that, according to the settled line of decisions, are ineligible for acquiescence occurred, the complaints raised by the appeal court by one party to an invitation by private agreement, if the applicant, first , has placed based on these complaints to challenge the use of such an instrument for selecting the contractor for failure to lawful conditions for choosing the type of competition, and, second, the same participant claims to have applied to participate in the tender in question, pointing out, clearly and unequivocally, that it will accept the tender selected by the type of proceeding (see, ex multis, CdS, Sec. V, 9 October 2003, No 6072).
However, in this case, it is clear from the wording of the complaint that the plaintiff does not question the use of private treaty as a means of choosing the contractor, nor the absence of the lawful conditions the choice of this selection method. Context, rather, the overall behavior of the municipality, which, on the one hand, he insisted on acquiring information about the contents of the offer of the company, and on the other hand, once acquired the same, instead of proceeding to the immediate conclusion of the supply contract with the company, he issued an invitation to the record, pointing to such technical and economic characteristics of the product to be supplied, just those resulting from the information gathered at today's event.
Since, then, what is the company regrets the fact that the lex specialis recall the bid requirements as announced previously by the company to the city, according to the College of censorship is not the challenge of investing conditions to proceed with contractor selection by private treaty (with the unofficial race), but the correctness and procedural legality of the process followed in practice. Hence the admissibility of the complaint (see Highway Code, Sec. V, 18 March 2004, No. 1424).
However, the same complaint is unfounded
Indeed, in a first aspect the records on file at all fails to confirm the thesis of PMCSrl, that would be the City of Canterbury to look (earnestly) to contact the company, to acquire information the characteristics of the software provided by this and would introduce it in an expectation that the conclusion of a contract. The documents filed by the applicant in this regard are all from the same show and, if anything, an initiative the company's constant (Which are consistent with its for-profit) of interest to the City to purchase their product.
In particular, there is nothing in the evidence placed in proceedings that it was the City of Canterbury to get a quote prior to PMCSrl (upon which model the characteristics of the product subject to tender) and to insist that the companies were demonstrations the operation of the software.
In any case, the company certainly knew the rules that govern the procedures for procurement of goods, products, services by the PA and thus could not place any reliance on the fact that any negotiations that occurred could be enough to reach the immediate conclusion the contract without any competitive process. In this sense, indeed, the applicant would have to wait to contacts with the City - they were real negotiations or more plausibly, as we shall see, mere exploratory surveys of the market - would follow a competitive process and based on that expectation would have to weigh carefully the information that it was appropriate to provide.
In another aspect, then, the type of activity in this regard by the PA does not seem to be overstepping investigation and / or market research, which performs the same operation that the PA functions with opportunities, in order to ascertain the willingness of operators to provide proposals and / or solutions appreciable in relation alle esigenze rappresentate dalla P.A. stessa. Invero, sarebbe insensato che l’Amministrazione, dopo aver effettuato indagini informali di mercato, non tenesse in nessun conto i risultati di queste al fine dell’elaborazione degli atti di gara. Appare, quindi, del tutto ragionevole che il Comune di Cantù abbia tenuto conto di quanto appreso in occasione della partecipazione dei propri dipendenti alla SMAU (che, com’è noto, è manifestazione fieristica del settore rivolta alla generalità degli operatori dell’informatica).
Infine, da nessun elemento si ricava che la controinteressata fosse consapevole che i termini tecnici ed economici dell’offerta indicati nella lettera di invito, in realtà, sarebbero were the terms of the offer made earlier to the City of Canterbury of the present appellant.
For this verse - that of violation of the principle of a level playing field competitorum - the complaint is therefore unfounded.
As for the allegations contained in the final memory, in the opinion of the Board of these, far from being mere explanation of the initial complaints, there are new allegations as true and are, therefore, ineligible.
Please note, in fact, that according to the law that the complaints are inadmissible in a memory has not been notified to the other party not only where are totally new and unrelated to the comments contained in the application, but if you recall a legally existing plea in the application, however, introduce and, in fact, new elements not originally specified, in breach of the term decadenziale and the adversarial principle (see , ex multis, TAR Calabria, Catanzaro, Sec. II, November 9, 2003, No. 3447, Highway Code, Sec. IV, 15 September 2006, No. 5385, id., August 10, 2004, n. 5513).
Moving on to examine the second ground of appeal, with it complains that a single employee of the City of Canterbury (the Manager of Human Services) has announced the contest, participated in it as President of the Commission and approved the acts of the entire proceedings, by providing, then, the formal award of the contract.
This would have violated the general principles that govern the contractual activity of the PA, which do not allow a single official match in the tasks of "controlled" and "controller".
The complaint is unfounded.
The Court has, in fact, repeatedly stated that Article. 6, paragraph 2, of ln 127/1997, in story-telling art. 51 of LN 142/1990, has put the leaders' responsibility for the procurement procedures "(as well as president of its evaluation commission) and the awarding of contracts (In the same way it is now art. 107, paragraph 3, letter. A) b) c) of Legislative Decree no. 267/2000). Although it is left to the managers responsible for these procedures, it follows that the same responsibility as well the correlative power of approval with regard to the technical verification and legitimacy of the bid documents, then reconnect to this refinement of the process to which procedural can only rejoin the full responsibility of the official (CdS, Sec. V, September 26, 2002, No. 4938, id., May 6, 2002, No. 2408, id., April 12, 2001, n. 2293).
It follows that the law does not foresee any incompatibility against the official who, in virtue of the office coated, performs the functions of President of the authority of the contract and is then competent to approve the bid documents (CdS, Sec. V, No. 4938/2002, cit.).
In exactly the same terms should then address the third ground of appeal, with which it is clear that the award would be affected by an act of incompetence, as adopted by the Manager of Human Services, instead of by the City Council (which its jurisdiction would lie in deference to the need to restrict the political power to ensure compliance with the procedural rules governing the race).
The point is simple fact argue that the award of a public tender is a measure of management. As such, according to the division of powers established by Legislative Decree no. 267/2000, it is reserved to the competence of the manager in the sector and not the elected bodies or of the local politicians, the latter of which is given the task of address, which consists in setting general guidelines to be followed by the PA , and the objectives to be pursued by management activities (CdS, Sec. V, August 29, 2006, n. 5047).
It also alleges the invalidity of the third ground of appeal. Coming
examination of the next ground of appeal, it is observed that the applicant alleges infringement of Article. 41, RD No. And the presidential decree No. 827/1924 573/1994 (which refers to the point at the Guidelines and in particular art. 9, paragraph 4, of Legislative Decree no. No 358/1992): Rules applicable to the case in question, since the provision of value below the threshold Community.
According to these provisions, there shall be direct procurement of supplies, for reasons relating to the protection of exclusive rights can only be offered by a particular individual or entity.
In this case, because the software required by the contracting authority would be protected by an exclusive right, and by the patent law and the protection of copyright, the City should have made the conclusion directly with PMCSrl, owner of its patent.
The complaint is inadmissible, however, unfounded.
In the first place you find that the complaint at issue here is alleged the existence of the lawful conditions for selecting the method of selection of private treaty through unofficial race.
Based on case law cited above, with reference to the first ground of appeal, it must therefore be concluded that the appellant's participation in the unofficial race has involved substantial acquiescence in his decision to call the race. From that acquiescence is apparent, therefore, the unacceptability of the complaints concerning the decision to use the ABOVE-MENTIONED method of selection of the contractor, instead to the direct award.
In any case, the complaint is unfounded, at least in two respects.
Indeed, in the first instance the applicant has not provided any response to the affirmation of the existence of evidence in his favor, a patent law, nor in any way to prove the intention expressed in the application, to activate the appropriate locations judicial protection of the program. It is a nullifying
profile, because if it is true that in the administrative process does not apply the general principle, be inferred from Articles. 2697 cc and 115 of the CPC, that it is for those who act in court to prove the facts forming the basis of claims made rather than the rule applies and the burden del principio di prova (T.A.R. Lazio, Roma, Sez. III, 18 gennaio 2006, n. 324), è però altrettanto vero che nelle ipotesi, come quella qui in esame, in cui siano nella disponibilità della parte interessata gli elementi di prova atti a sostenerne la domanda giudiziale, il principio sull’onere della prova ex art. 2697 c.c. conserva integro il suo valore (C.d.S., Sez. VI, 2 marzo 2004, n. 973; T.A.R. Lazio, n. 324/2006 cit.). In ogni caso, alla luce di quanto riportato, si deve concludere che la ricorrente non abbia fornito nemmeno un principio di prova (per es. depositando gli atti comprovanti l’azione in sede giudiziaria a tutela del diritto di brevetto, che aveva manifestato di voler proporre).
Sotto un altro aspect, then, it appears from the bid documents the diversity of the applicant's product and that of the other party, such as to ensure that there has been violations of '(unproven) property right. In particular, the technical report of the Head of the CED, as will be seen later, has highlighted the differences between their two products. For this verse, then, emerges the foregoing complaint is unfounded. Coming
Finally, examination of the fifth and last ground of appeal, the appellant states with it a host of grievances against the tender process. In particular:
a) the award would act unlawfully and falsely given extension of the subject of race in the management of activities related to the cd. Project Pegasus, whereas the extension would not be inferred from the letter of invitation, nor in the special, the minutes of the race or the technical report, so that, on closer inspection, the expectation would be for this part occurred even without competition;
b) the Commission did not explain the reasons for the award, in relation to the parameter of the quality of design, only 50 points to it, compared with 53 assigned to the defendant;
c) the technical report, bearing the date March 9, 2000 would be back to the stage of allocation, by the Commission of the scores for the technical part of the offer (which took place on February 16, 2000) and even the same determination for the award, dating back to March 6, 2000;
d) the above-mentioned technical report would be totally inappropriate to support an adequate proceedings relating to the technical part of the proposed software, it would act as general, very weak and full of errors and the technical terminology (analytical error identified in Sec. 6 of the party made the application);
e) finally, the technical opinion of the Commission would be incomplete because, while being part of two members as "experts", that opinion was given to only one of them (the Head CED of the City, author of the technical report for the note disputed).
None of the above complaints, which is articulated in the fifth ground of appeal, can be shared.
regard to point a), it is stressed that the determination of the award indicates the subject of the award to purchase the same software application for the Social Services Department "for managing the activities of the project" Pegasus ", funded by regional funds pursuant to law (sic) No 285/1997. "
This wording confirms the assumption of communal defense, for which in this case at issue, the Administration has done to award the Corporate Trade Service Srl supply application software for the Social Services Department, but merely to point out that this software can handle, among other things, the social activities of Project Pegasus. "
use, the measure for the award, the word "also" allows, therefore, to believe that - contrary to the assumption of the applicant - the subject of race was always just the provision of application software for the Social Services Department: Software which has, among its features, that can be used for social activities of the project in question.
In other words, the activities of the Project Pegasus is to be considered included among those for which use the software object of the game, since, as recalled its determination to negotiate No 155/ss.ss. On December 14, 1999 (cited in the list of companies eligible for competition: see doc. 8 City Council), the Offices of Social Services Department had just the need to provide "a specific application software for the social sector, particularly suitable to manage the activities in implementation of the Pegasus Project .... "
regard to point b), it must be considered together with c) and d), given the close interdependence that binds the complaints described in those paragraphs.
regard must first be challenged in the judicial review in order to findings made by the Commission discretionary technical notice in the comparative assessment of tenders, can only be limited to verifying whether or not an index is not indicative of the proper exercise of discretion in this case the lack of reasoning, illogical manifest incorrectness of the facts, inconsistency of the procedure evaluation and its outcomes (CdS, Sec. V, October 12, 2004, No 6566).
However, with regard to the complaint stated above in point b), namely the PA have not explained why it was awarded for the technical part of bids, the defendant, a score (53 points) greater than that attributed to PMCSrl ( 50), it should be noted that these are clearly unfounded complaint, because in reality the Commission as regards the assessment technique, referred to the report of the Head of the CED, completing therefore the burden of justifying their own choices, through motivation to other documents.
In other words, in this case, the Commission's choice in the technical evaluation of tenders is free of all those indices symptomatic of improper exercise of power that have been reported earlier.
In particular, there is - contrary to the assumption of the applicant - no lack of motivation as the reason for the different scores assigned to the technical part of the two products (that of the applicant and that of the other party) is gathered the Commission in being called (and appropriate) to the assessment made by the Head of the CED in its report. For the effect, there is complete consistency between the evaluation procedure followed and the results thereof.
regard to point c), apart from the documentation produced by the defense last city, it is clear that, in this case, the fact that the technical report of the Head of the CED is dated March 9, 2000 is the result of a mere clerical error and not compromising in any way with the Commission (which, according to the applicant, in such a way would have given an opinion does not exist at the time and written only in retrospect).
supporting the thesis of the clerical error - Such as to conclude that the effective date of the report is February 9 and March 9, 2000 - lay, in fact, the two elements that are exposed below.
1) First, the fact that the date indicated in the report is "09:03:00": this makes it very likely that there was a mistake of typing ("09:03:00" instead of "09:02:00"); in Indeed, the thesis of the clerical error would have been much less credible if the date had been referred to as "March 9, 2000" instead of "February 9, 2000."
2) Secondly, the very fact that the minutes of the Commission dated February 16, 2000 recall as Annex "A" and an integral part of decisions made by the Commission in the allocation of scores for the technical aspects of tenders, the report of the Head of the CED, goes to show, contrary to the assertions of the applicant, at that date - February 16, 2000 - the report itself there. Even this way, then, acquires credibility of the argument and consideration of the factual error of 9 February 2000 as the effective date of that report. Having the opposite opinion, at this point, be dall'impugnativa surrogate for the aforementioned false report of 16 February 2000: not contested, however, is given by the applicant.
In relation to paragraph d) above summary - presence in the report of the Head of C.E.D. di numerosi errori tecnici e terminologici, che ne infirmerebbero la validità e l’attendibilità – osserva il Collegio che la citata relazione si presenta chiara, esauriente e ben motivata, mettendo essa in evidenza, al di là di possibili improprietà terminologiche – non tali, però, da renderla inattendibile – le ragioni che hanno condotto a preferire l’offerta della controinteressata.
Ciò risulta particolarmente da alcuni passaggi della relazione, e precisamente da quello in cui sono sottolineati i punti deboli del software applicativo proposto dall’odierna ricorrente (ridotto utilizzo del programma, sua debolezza in termini di sicurezza, mancata attivazione di alcune funzioni richieste dal capitolato, ecc.) e dal periodo finale in cui i due prodotti vengono messi a confronto. A seguito di tale confronto, viene infatti evidenziato che il software della controinteressata – a propria volta non privo di punti deboli, puntualmente indicati dalla relazione, il che rafforza l’attendibilità di questa – è prodotto decisamente superiore all’altro dal punto di vista dell’analisi e della funzionalità, "in quanto meglio progettato e sviluppato in modalità più organica e precisa". Inoltre, esso permette di sicuro "una rappresentazione grafica più omogenea, sicura e controllata ed agevola l’utente nell’utilizzo" (profilo, quest’ultimo, di particolare rilevanza).
To the extent that is unacceptable judicial review of that assessment, it is entirely immune to those profiles - inconsistent, illogical, and so on. - Who are more symptomatic of the above-mentioned indexes not proper exercise of discretionary power and technical evaluation.
Nor can we underestimate how much the defense of the defendant, acutely observed, that, in matters of information technology products, the length of the product, especially when it comes to software, is a defect and not an asset, since it is a common experience the increasing speed of the processes through which these products become technologically obsolete.
In this respect, then, the applicant's own statements, in particular that the software offered by it was prepared in 1989 and then as many as 11 years before the date on which the facts of the case, incorporate a true declaration of the inadequacy and obsolescence confessors the product itself: What constitutes a further indication of the validity and reliability of the report alleged.
Finally, as in point c), concerning the conduct of technical evaluation by one of the two members of the Commission designated as "experts", it is sufficient to note that in contrast, since the entire jury has been called up and espoused, the minutes of the February 16 2000, la relazione del Responsabile del C.E.D., ne deriva che detta relazione è stata condivisa, proprio nel suo contenuto tecnico, anche dall’altro "esperto" della Commissione (oltre che dai restanti componenti di questa).
Debbono, infine, essere dichiarate inammissibili, quali censure nuove, sollevate per la prima volta nella memoria finale, le doglianze concernenti:
- l’essere il Responsabile del C.E.D. del Comune un imprenditore del settore;
- il non avere il Presidente della Commissione contribuito in alcuna maniera alla valutazione delle offerte;
- il fatto che il collegio avrebbe dovuto essere costituito da un numero dispari di componenti, ciò che nella fattispecie non sarebbe avvenuto.
Ultimately, the appeal is unfounded as a whole and, as such, must be rejected.
should also be declared inadmissible the application for compensation made by the applicant, being eligible for compensation only if the action is successfully cultivated the proceedings for annulment of the unlawful measures challenged promptly (CdS, AP, March 26, 2003, No. 4) .
expenses are paid following the unsuccessful, as the device.
PQM
The Regional Administrative Court of Lombardy, Milan office, ^ Section III, by saying so definitively on the action mentioned in the headnote, rejects it.
declared inadmissible the application of damages.
order the applicant to pay the fees and expenses of the proceedings, that liquid, in favor of the respondents in a flat rate in a total of € 5,000.00 (€ fivethousand/00), plus tax and CPA as required by law. Sort
that this sentence is carried out by the administrative authority.
Decided in Milan, from the Lombardy Regional Administrative Court, Section III ^, in chambers on May 22, 2008, with the intervention of the Lords judges: Domenico Giordano
President Peter De Berardinis Ref, extensor
Raphael Gisondi Referendary
Filed in the Secretariat on November 19, 2008.
declared inadmissible the application of damages.
order the applicant to pay the fees and expenses of the proceedings, that liquid, in favor of the respondents in a flat rate in a total of € 5,000.00 (€ fivethousand/00), plus tax and CPA as required by law. Sort
that this sentence is carried out by the administrative authority.
Decided in Milan, from the Lombardy Regional Administrative Court, Section III ^, in chambers on May 22, 2008, with the intervention of the Lords judges: Domenico Giordano
President Peter De Berardinis Ref, extensor
Raphael Gisondi Referendary
Filed in the Secretariat on November 19, 2008.
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