On appeal No. RG 4927/09, proposed by:
Scale Enterprise Srl, represented by its legal representative pt and defense lawyer Fulvio De Angelis, with an address at the same in Naples, Via Vittoria Colonna, 9;
Ccs-Consortium Conai Service, in its legal representative represented and defended by Cristina pt Serafino, with an address at Vincenzo Ferraiuolo in Naples, via dei Fiorentini No 61;
of determining executive n.401 of 08/28/2009 08/28/2009 rgn922 of revocation of the award of the tender issued by the provisional determination n.132 of 03.03.2009, of the notice; note prot. 35899 of 8/31/2009, and any other act connected with or resulting.
and for annulment on appeal
determining exclusion from the race of the Consortium Conai Service n. 975 del 21 settembre 2009.
Visto il ricorso con i relativi allegati;
Visto l'atto di costituzione in giudizio del Ccs-Consorzio Conai Service, nonché il ricorso incidentale;
Viste le memorie difensive;
Visti tutti gli atti della causa;
Uditi all'udienza pubblica del giorno 18 novembre 2009 – relatore il consigliere Paolo Corciulo - i difensori delle parti come specificato nel verbale;
Ritenuto e considerato in fatto e diritto quanto segue:
FATTO e DIRITTO
In data 21 maggio 2009 la Scala Enterprise s.r.l. veniva dichiarata aggiudicataria provvisoria della procedura aperta indetta dal Comune di Acerra per l’affidamento three years of service for cleaning of the premises of the former town hall and magistrate's court, winning the race by the criterion of maximum fall. Award was given to the Company with footnote 21846 of May 13, 2009.
are in the process of verification of the requirements, with footnote 28 922 of 18 June 2009 informed the contracting Scale Enterprise Ltd., which had emerged from the investigations carried out violations of tax for the year 2005, as well as a condition of irregularity in the payment of contributions - from emerging DURC received June 18, 2009 - the On 6 May 2009, the date for holding the event, resulting in the breach remedied only with subsequent payments of May 14, 2009. La Scala
Enterprise Ltd by letter dated 23 June 2009 n. 29,314 justifications made on the situation at issue, highlighting the absence of tax debts and representing that you have already performed on March 16, 2009 its contribution payments via electronic banking delegation, was also pointed out that I have never become aware of the causes of failure to pay all 'Social Security, however, confirming that they have paid the sum of € 4,563.87, including penalties and repentance, the same day he received a special request by the social security. While the condition of irregularity
tax relief was passed by the existence of corresponding tax, the tax position for the contracting acquired on July 28, 2009 re DURC Scale Enterprise Ltd on 6 May 2009, document that obviously could not confirm that the irregularity of payments, only healed May 14, 2009.
On August 27, 2009 with No determination 401 the leader in the industry, based on the data emerging from the two DURC Scale Enterprise Ltd by 18 June and 22 July 2009 that there was a case for revocation of the award for temporary absence of the requirement set al'art. 38, first paragraph of the letter) of Legislative Decree no. April 12, 2006 No 163; the same decision was provided for the forfeiture of cauzione provvisoria e la segnalazione all’Autorità di Vigilanza.
Il provvedimento veniva comunicato alla Scala Enterprise s.r.l. con nota n. 35899 del 31 agosto 2009.
Avverso il provvedimento di revoca e contro la nota di comunicazione proponeva ricorso a questo Tribunale Amministrativo Regionale la Scala Enterprise s.r.l. chiedendone l’annullamento, previa concessione di idonee misure cautelari.
Con la prima censura la ricorrente contestava che del tutto irragionevolmente la stazione appaltante aveva insistito nel ritenere irregolare la sua situazione contributiva sulla base dei due d.u.r.c., essendo stato per converso adeguatamente dimostrato che le ragioni del mancato tempestivo versamento erano dovute ad un mero errore materiale di digitazione Code of Social Security in electronic banking delegation that had determined the outcome of non-payment stage.
The second ground of appeal Scale Enterprise Ltd., noting that his condition would not require regular contributions from the contracting authority, as a measure to set aside and not to withdraw the award, refused to have committed a serious contributory infringement in accordance with art. 38, first paragraph of the letter) of Legislative Decree no. April 12, 2006 No 163, this being the failure to timely payment of a small part of a society ever committed in previous delays or omissions. Thirdly, it is shown that the evaluation of regular contributions was exclusive competence of the social security and not the contracting.
With the final ground of appeal the appellant complained that the reporting to the Financial Regulator and for repaying the deposit placed with the contested measure.
By Presidential Decree 2220/09 of 25 September 2009 was granted ex parte interim protection.
pleas on the merits, the Consortium Conai Service, a company that had placed second in the ranking and that too was excluded in its review of the participation requirements for tax irregularities or any of its member companies. In this regard, proposed appeal aimed at achieving the cancellation of their exclusion.
The City of Acerra was not in court.
the chambers on October 7, 2009 the Court, by order No. 2265/09, granted the application of the precautionary principal applicant and dismissed the Consortium Conai Service.
At the hearing on 18 November 2009 the case was held for the decision.
The second main ground of appeal is well founded.
Article. 38 of Legislative Decree no. April 12, 2006 No 163 states that are excluded from participation in procurement procedures of concessions and contracts for works, supplies and services, nor can they be foster subcontracting, and can not enter into the contracts the subject: ... i) who have committed serious violations, as finally established, the rules of social security contributions, according to Italian law or the State in which they reside. "
The same provision, the third paragraph also states that "it remains stationary, the Trustee, the requirement for certification of regular contributions referred to in Article 2 of Decree-Law of 25 September 2002, No 210, ratified by Law 22 November 2002, No 266 and in Article 3, paragraph 8, of Legislative Decree 14 August 1996, No 494 and subsequent amendments. "
Preliminary issue to be resolved in the economy of this case is that relating to the finding of "serious violation, as finally determined, the rules of social security contributions and in particular if, for this purpose, the contracting should simply implement what is contained in the document of Social Security, to that effect identifying the responsibility to verify the existence of the requirement on the part of the social security authorities alone, or if the characteristic of "gravity" is an integral part of this case compared to the emerging formal DURC, as such sottendente an independent assessment of that station contracting, as the owner the power of ascertaining whether the conditions for participation in capo ai concorrenti.
Al riguardo, va osservato che sebbene sulla questione non vi sia stata uniformità di vedute, secondo l’orientamento prevalente, a cui il Collegio aderisce, la valutazione circa l’esistenza di gravi violazioni in materia contributiva e previdenziale come requisito generale di partecipazione alle gare costituisce oggetto di autonoma valutazione da parte della stazione appaltante, rispetto alla quale le risultanze del documento unico di regolarità contributiva si pongono come elementi indiziari, da cui non può prescindersi, ma che comunque non esauriscono l’ambito di accertamento circa la sussistenza di una violazione “grave” (Consiglio di Stato VI Sezione, 4 agosto 2009 n. 4907).
La Court has had occasion to note that "under the general requirements for participation in the tender, art. 38 of Legislative Decree no. April 12, 2006 No Includes 163 cases for which the impediments to be one, must in the nature of gravity in the field of occupational safety (and literally), negligence and bad faith in the execution of performance (letter f), irregular pay (Lett . i) and other cases for which the requirement of gravity is not required, and including, the tax deficiencies under letter. g), so the legislature intended to give the Administration the power to assess the scale of the purposes of the condition reliability, only in situations characterized by gravity, while in others the existence of the infringement is in itself sufficient to prevent the participation in the procedure "(Council of State Section V, March 23, 2009 No 1755).
The relationship that exists between the single document of regular contributions and final assessment about the possession of the general requirement for participation is concerned, therefore, in the sense that the contracting is still bound by the findings of DURC, because of its nature as a statement of science, be placed between the documents for certification or written statement by a public official and being purely declarative data available to the public Directors, assisted by public trust under Article 2700 Civil Code, thus making the test to be false (Council of State Section IV, 12 March 2009 No 1458).
However, once acquired the document of Social Security, it is the contracting authority to decide whether the findings contained therein, not objectively questionable - in addition to the finality of the investigation, which is necessary to consider the integrated legal precept of Article. 38 - are also suitable and sufficient to justify a trial in terms of severity of a violation has been established by DURC in other words, an account is called the regular contributions to the formal powers of investigation and evaluation of the Institute of social security, another is the severity of a violation relating to pay and benefits for participation in a public tender which the contracting authority requires further evaluation, which is left exclusively to the task of checking a discretionary if, in the presence of the violation, the competitor should not be considered reliable with regard to compliance with rules protecting workers and the Dean of reliability and continuity of the business.
In this regard, the contracting may well only if it incorporates the document of Social Security and believe that any cases considered by the INPS as a condition of irregularity to pay - such as, for example, the non-timely payment or the failure or partial payment of contributions actually payable - are also in itself a serious offense that warrants the exclusion from the race, of course, the mere reference in the findings do not exclude the sindacabilità DURC of the exclusion measure in terms of adequacy and sufficiency of the investigation and the reasons, but mainly in terms of rationality and proportionality of an administrative decision that has implicitly made to coincide irregular pay and gravity of the violation. And in these terms
is founded on action in which it was ruled illegal the decision of the contracting authority does not have the final award of the race in favor of the applicant, having the same limited to recall the contents of the stack DURC and thus pay tax irregularities and seriousness of the violation, because, although it was well known to the town of Acerra the whole affair had given rise to what can be described as a mere inconvenience, would be consistent with principles of fair and rational action to consider administrative the cause of the failure to timely payment, the amount of the unpaid amount and the behavior of immediate regularization by Scale Enterprise Ltd, in order to be able to better assess whether, both in terms of attributing subjectivity, both from an objective point of view of incidence of irregularities, it was actually in the presence of a serious offense under Article . 38 of Legislative Decree no. April 12, 2006 No 163.
In these terms, the main action must be upheld, with consequential cancellation of managerial determination n 401, August 28, 2009 revocation of the award, without prejudice to the further steps of the administration.
should instead be declared the inadmissibility of the appeal, and because - regardless of any further question of ritual - non risulta eseguita la notificazione dell’atto al Comune di Acerra, non costituito in giudizio, sia perché l’accoglimento del ricorso principale renderebbe comunque privo di attuale utilità l’eventuale accoglimento del mezzo di impugnazione in argomento.
Sussistono giusti motivi per compensare tra le parti le spese processuali.
P.Q.M.
il Tribunale Amministrativo Regionale della Campania, I Sezione
- accoglie il ricorso principale e per l’effetto annulla il provvedimento impugnato;
- dichiara inammissibile il ricorso incidentale;
- spese compensate.
Ordina che la presente sentenza sia eseguita dall'autorità amministrativa.
Decided in Naples in chambers on November 18, 2009 with the assistance of Judges:
Antonio Guida, President Paul
Corciulo, Advisor, extenders
Guarracino Francis, First Referendary
FILED IN OFFICE The
11 / 01/2010
