Luigi Mazzei
(Lawyer)
The analogy and the contract will
Some regulatory gaps in terms of criteria for the award of public works contracts led the interpreter - in search of a discipline - to make (obvious and proper) use the analogy basing, however, (of virtue of necessity?) Research on the standard helper become more of a similarity lexical similarities of actual closeness of "cases" or, Melius, extending well beyond the limits that allows such a delicate operation hermeneutics, where the interpreter replaces the legislature.
As is known, the criterion for the award of public works, to measure (which unlike the case of the legislature, appears to be in practice, the prevailing mode) with the law 109/94 (cd Merloni) et seq. modif., is the "... lowest prices determined by supply unit ...", (and, for those to rely on the body by decreasing list prices).
Early complications arise in search of ways to the discipline of the race.
the rule does not say - art. 21 L. 109/94 and succ. modif. - As proceed to make such an offer, even if no one is no exception to the relevance of that indication, because it is hardly necessary to remind you, the administrative procedure for the selection of the contractor is aimed precisely at conclusion of a contract that is agreement between two parties (must then match the wishes expressed by the parties) on certain elements that, in the contract (which is identical, even for this aspect, public and private) is the commitment to give something ( opus ) against a consideration.
The indication that this element is therefore crucial and is the point which focuses on the critical analysis that is intended to offer here.
In the notices, - probably on the idea of \u200b\u200bunprovoked ministerial circular - the reference (a little 'uncritical) is the procedure under Article . 1 letter. e) of L. 14/73, as specified in Art. 5 of callback L. 14/73.
As you recall the Law 14/73 regulates the procedures and criteria for deals in private treaty.
In the case of Art. 21 cited. L. 109/94 and succ. modif. it of public auction, but this difference does not seem relevant, by doing the pre-selection phase competitors who did not rifluenza articulation of the procedure.
The difference is that art. 1 letter. e) and in art. 5 of L. 14/73 is discipline a criterion other than art. 21 L. 109/94: is, in fact, offered (note the plural) of unit prices.
The different terms used by those two provisions - which are different concepts - already constitute a decisive element (Article 12 preleggi) for the interpreter not to assert identity criteria and feel the need to investigate how much similarity retain for analog application.
And the most important aspect is that the criterion of tenders unit costs (Articles 1 and 5 L. 14/73) the award is in favor of tenderer offering the lowest price given by the sum of the products of unit prices for unit of measure for each occupation necessary to give the 'opus , with the particularity that what is relevant are the individual contract prices, (the co. Article 11. 5, in fact, it specifies the price offered "... are counted as contract prices") and not to leave, the Administration, the victim of variations that increase the amount of individual categories, adds the norm (Co. 12) that this bond lasts until physiological increase (20%), then substituting determination under Regulation (Article 22 RD 350/1895).
Assuming, however, art. 21 L. 109/94, is the lowest price what seems to rise to the dignity of contract although it remains to see how the phrase "... determined by bid price unit, which reads the rule cited above, applies to alter this conclusion.
In terms of lexical (definitely relevant) mode, with the which asks for the lowest price for how much impact you want to give it , do not apply to the "lowest price", the item does not significant contractual will.
And this consideration would be sufficient to realize that can not be applied mutatis mutandis to the art. 5 of L. 14/73, for all those provisions that refer (and rightly so) only to the individual unit prices which expressions of the will bargaining, as such, of course, can not be modified in the verification of bids.
For Article. 5 L. 14/73, in fact, the "total price " is just one element of facilitating the identification of the highest bid, but certainly nothing that belongs to expression of will, and then anything which may affect the contract so as to power be changed if you do not recognize a consistency in products between moltiplicandi (unit prices) and multiplier (unit) or the sum of final products (the "total price").
And those rules can not be applied bid regulated by art. 21 L. 109/94 and succ. modif. is rejected from further notations on the importance of the indication of prices in this offer.
Bear in mind, in fact, that the prices that apply for accounting work can only be as the list prices of project, (duly approved), and apply - of course - what increase the percentage of category of work that should change (except as tempers compensation if the changes affect the balance of the contract and subject to rejection contractor over sixth-called fifth).
Indeed, in the absence of a specific rule derogations (Co. 11, art. 5 L. 14/73), the Administration is bound by the price of the project, unless the fall, and may very well, the participant in the tender art. 21 L. 109/94, increase some prices, while offering a discount on the total.
E 'hardly necessary to point out that there is a set of rules that comply with the process of formation of the will of the PA intervention bodies of technical advice, intervention (almost always) Funding, in addition to the rules governing changes to projects that make the whole rigid an indication of an item so important, for contracts to measure, such as that unit prices .
And only a specific law (Co. 11, art. 5, L. 14/73) that allows an exception to that rule in the case of race regulated by the Articles. 1 and 5 L. 14/73, which means that its exceptional character seems not to doubt, excluding its application by analogy.
If this is true you can not apply the rules provided for in Article . 5 L. 14/73 to tender issued by the criterion of art. 21 L. 109/94 and succ. modif. without taking into account such significant differences.
line art. 5 cit. is expected to consider relevant individual unit prices offered for they are the expression of those negotiations will and the sum of individual prices (Melius products because the price offered is multiplied by the unit of measurement of individual categories of work: mq, mc 3, weight, length, etc..), where it was wrong, it should be correct, but obviously not allowed (or could be) the correction of negotiation will, or the individual prices .
There may be some discrepancy between the indication in letters and figures in the and is considered binding in the letters, this being an indication that expression requires more attention and is - the external material - less uniform than it is the put the figures together (hence the possibility of minor errors ). It 'an event that requires greater reflection and thus protecting the party that says, shall be deemed - in case of discrepancy - that binding.
For Article. 21 L. 109/94, however, individual unit prices could be wrong as you want, but having no relevance negotiation, not rises to contractual elements, can have no influence on the competitive process: the final price is the only element of supply could influence negotiations. It 's the price that must be weighed against all other prices offered by other competitors - to determine which is the lowest, since this particular (being, arithmetically, the lower the prices of all offered) that determines the award and, therefore, that changes in price or consideration or contractual amount.
If you determine that this element (consideration) is determine on the basis of reduction to be made at a maximum price designated by the party calling for tenders, not can in any way and for any reason distort the expression of the will of the tenderer that in case of Art. 21 L. 109/94 and succ. modif. is that the lowest price.
But, he points out, that price is determined by supply unit prices. If there is discrepancy between the prices in figures and words or there is error in the product, being the total price formed by the sum of the products of individual unit prices for the units of the various categories of work, here is wrong with the total price.
Reasoning that is flawless but not as a conclusion (the problem is not arithmetic but legal) the correction of the total price.
It is said that Unit prices do not become contractual elements and their importance is therefore confined to the mere highlighting the location of economic assessment of the tenderer, with possible impact on the manifestation of the will negotiations.
But from now expect to change this expression of will (ie an indication of the lowest) by grinding operations who represents the counterparty or this has been delegated to certain activities instrumental in the formation of the contract there is an abyss (On which they stroll casually to attend the celebration of many races).
It is certainly not unbridgeable chasm added a or administrative proceedings or a decision in the administrative process.
In the expressions of will can make mistakes and the Civil Code - of the defects that can lead to the annulment of the will the shop - it shows the error and discipline .
The fact that an individual commits such a mistake in expressing its willingness to a government does not change the rules in the Civil Code.
The error in the unit price or the product may (at) be central to affirm the recognition that - as is known - is one of the elements that must be error (must be recognizable) to be relevant and therefore have the potential to cancel the event will.
essential and should be - without being here to remember how to Art. 1428 cod. Civ. - If you do not seem to possess this requirement. It 'a simple calculation error that did not appear to affect the amount, when the participant to the tender offer price is what it intends to offer, and if wrong to make some additions or multiplications does not mean anything in itself.
And above all - must say - not third no legitimate claim to the correction: the only one with this power are those who have expressed their will. If you want to cancel it must show that his mistake is recognized and essential and that affects the amount: that is the price stated in return for giving the opus is not the total supply, but what is written after have adjusted prices or goods or money.
The alleged unacceptable to say the least (but very frequent what you hear in the halls of the TAR) is that it requires a third and that it does a representative of the party contract or an act of the administrative process, certainly eligible to declare the legality of an administrative act or to punish the unlawful, but also unfit to judge the validity of the event will an individual, even if this event is targeted at a public administration.
You can not confuse the position of those in an administrative process has legitimacy and interest in asserting the illegality of an act of a Public Administration that covers one third share by this act, the persons entitled to assert the error in the expression of will by one third well that is the subject of proceedings.
Other well understood is that the seat of a race so detect incorrect price offered (x instead of y) by a third party: the error of the PA and anyone's interest to do so is entitled to point out. But the investigation into the training and outside of the will of a third party - even participate in the proceedings - is quite another thing: it belongs to the private third party (which does not become a public entity for its participation in this ), is regulated from the civil code, and legitimacy to counter it is permissible to the extent that they concern the regulation of private autonomy.
The PA is the recipient of the money supply: the elements for its determination (unit prices) are not part of the offer because they do not become elements negotiations.
There is more. Consistent with the differences between the two procedures for the award, there is no obvious difference in the Subprocedure verification of "anomalies."
While assuming governed by art. 5 L. 14/73 check the administration on any abnormality is related to individual unit prices (the bid), in the case of Art. 21 L. 109/94 and succ. Modification. the anomaly is given by the total price if it is inside or outside of the average mentioned above.
As you know, with DM 28/04/1997, to establish the discriminating between normality and abnormality, we refer to the average Offers of the tenderers increased by the difference of the arithmetic average of the bids that pass the first media.
In simpler words, to exemplify, if you are in a race accepted offers one hundred and the average decline is 25, is added to that number (25) that the is determined by calculating the arithmetic average of the gap (the difference from the first average) of all those deals (the one hundred allowed) in excess of 25 (global average). Always to remain in the example, the seventh grade (about the only deals that exceeded the first one) is equal to 4, which added to the first average is 29.
are anomalous bids in excess of this grade. In fact, thus remain outside the deals only with the strongest declines, because they exceed even the second corrected mean differences showed that the deals that were already beyond the sixth grade. A sort of repechage not leave out all the deals that exceeded the grade.
These articles procedure - which seems (to us please forgive the audacity ) studied more experts than by lottery obsequious interpreters of EU directives - has to do with the concept of fault established by art. 30, par. 4 of Directive com. No 93/97 of 14 June 1993, has not given understand.
It 's a policy that does not connect to the national market (just compare means of the rebates in the south and center-north of the country), which aggravates the areas of crisis (the average of bids in our island is 30% or below the balance any possible reciprocal) that has no connection with the provision in question contract.
can be such an indication (lowest) product price most bizarre and at odds with the market: if the total price is within the average this offer can not be considered abnormal.
trying again so as we saw above the diversity of contractual elements that are relevant in two cases under consideration.
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In conclusion it must be said that in tendering art. 21 L. 109/94 and succ. modif. seems legitimate use of the analogous application of Article . 5 L. 14/73 limited to submission of tenders (Co. 1-3), indicating that what is binding is the total bid price.
Consistent with this specification and the criteria (illegal) verification of the anomaly, will be quite possible to verify all bids, taking, of course, this, that the item you must take firm and unchanging is the price (total) offered.
Even more obviously, in this event will be apply all the rules that the Civil Code, with the addition of principles identified in the case of common sense administrative order in the case of obvious clerical errors (cons. State, Sec. V, 21 October 1995 No 1467).
E 'hardly necessary to add that it would take very little to bring the matter within of legitimacy, it seemed that with sufficient circular (and in Sicily with an updated edition of notices type) drawing the attention of the government not to extend the analogy beyond the limits permitted , excluding, in particular, statements regarding the alleged immutability of unit prices.
unchanged is the price expressed, thus also consistent the proceedings of the event that Article. 21 L. 109/94, makes reference only to that data. Last but not least a positive end to the notation "adjustment" of the judicial races, which represent the distortion serious results of the competitions that produces uncritical reference analog noted above. Being limited by the judicial administrative proposition reason, just report the errors that "serve" to readjust its media (rightfully, however, as the action permissible within the limits interest) and the game is done . Pace of negotiations and will Limits of analog.
Pending the publication of the above has triggered Lr 21, September 2, 1998 ( GURS 44 of September 5 1998) by which the regional legislature seems to retrace old (and steep) roads.
Before some notations related to the new standards on procedures of custody must be made a general observation. The legislative autonomy region has its justification when it intervenes to regulate specific aspects of reality that island where they were governed by state regulations refluenze suffer negative fact, as is common ground, an identity of discipline for different phenomena, produces the same disparity diversity of discipline for identical phenomena.
If so, how hard you do, you can not understand why was repealed a rule such as that the two co. art. 14 Lr 4 / 96 Modification. LR 22/96 "I criteria for the award are governed by state legislation in force at the date of the resolution of the notice by the contracting Administration.
A part that is hard to find a reason explaining why should be different criteria for the award of public works contracted by Municipality of the City of Messina and Reggio Calabria, the look - on the one hand, hilarious, tragic the other - that is, after deleting a provision so important, not outlines new criteria.
It makes a statement of principle (Article 1 co 1). essentially useless (the public auction has always been the sole criterion lowest price and the deal is so private that does not exist worth dwelling) and, below, will bring together multiple criteria, riintroducendo (de facto) the restricted tender for the work below the EU threshold ( contradicting the choice of which to the RL 10/93: Articles. a 34 et seq.) and legitimate, with the repeal of remembered improvident 2 co. art. Lr 14 4 / 96 and the statement the first paragraph of art. 1 ("... ...") amount of any doubts that are input into the criteria of Article Sicily. 21 L. 109/94 Modification. L. 216/95, or art. 30 of Dir. com. June 14, 1993 No 93/37/EEC.
with obvious consequences on the constitutionality of the measure .
It may be noted, in contrast, that the reference is made to public auction and private treaty, but the silence over the other procedures and provisions in the following paragraphs, referring to criteria for bidding private, legitimize, as we shall see, doubt.
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Turning to the merits of the new rules are added to short notations.
The first is the inexplicable reference to media reads the third paragraph of art. 1.
Which media? Article. 5 L. 14/73, to which reference is made, not contain any media.
for the hypothesis that the reference should be made as set the next co. 6 is immediately told that the task of the interpreter is very difficult .
First, you must use a new canon of interpretation: intuition. Co. 6, it appears that regulations are the fault of tenders. And doubt that it expresses is more than justified because there is only one mention of the institution: indeed, according to the rules dictated by art. 12 of preleggi cd, it seems that it regulates a new case of exclusion (it is unclear whether the race or adjudication) resulting in doubts about the legality of such a rule.
Following the hypothesis that the regulations, however, any abnormality of the tenders, the embarrassment of interpretation, just returned of a period. In fact, after referring to the policy of automatic exclusion (in our opinion low also illegal under the EU threshold) where the downward exceed a certain percentage (20%) the average of the offers, is introduced unexpectedly ... the cabal.
In fact, in the event that tenders are not less than six , regardless of the award procedure chosen (in the absence of other indication, the rule does not that can cover all procedures), the first automatic sorting there is another.
The temporal adverb "then" you read the second sentence of paragraph 6 , leaves no choice.
But even want to read it and give it a value of alternative nature and not consequential, the absurdity (there is no other term) end. In fact the rules of the event is passed to a new criterion for the award. Instead of the secret ballot in art. 2 L 14/73, you replaces the average of the offers remained, after excluding the 25 per cent of deals with major declines and 25 percent of deals with smaller declines.
At this point it is quite clear that there is no abnormal nothing but the choices of the legislature. In fact, what may well be a criterion for award of the work (with the positive effect of limiting the harshness of competition, which is destroying businesses and wealth and can not give work done well) is used in any way, such as corrective anomaly. And this in procedures as a criterion for the award is refer to the lowest price or offers of unit prices.
The result of what is thus established that the invitation to tender, instead of indicating that the award will proceed with the (new) policy of Average ... media (the so-called cutting of the wings does not affect the media, except to the hypothesis that the number of companies are odd) it will show the public auction and, then, even if you do not detect any abnormality, the award will be introduced by a different criterion.
If there is something reasonable in all this, if this is the way to conclude a contract, a quotation to a conscious entrepreneur do not seem to interest. We hope that he may soon be taken over by those who have always considered the irrationality crippling defect of the legislative will.
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to remain art. 1, there may be some positive certain hankering for rigorous evaluation that occur with the inclusion of rules essentially criminal in nature (co ult. period. 5) or pretend to dictate new grounds for exclusion (Co. 4). Some ocelots are, unfortunately, difficult to die.
E 'is further proof of the art. 2: In an economically depressed area , such as Sicily, in a sector in serious financial crisis, the choice to reintroduce the burden of provisional security leaves you speechless. O there would be better, but it is not appropriate to say here.
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E 'right, however, say that there is something good in the measure. And that something is in the specification, which unfortunately has become necessary, the duty of the polling notice, to proceed with the reading of all bids. also those excluded.
There are, in fact, offers examples of reasons for excluding irrelevant which, incidentally, when they are readmitted to the data now known, have a downward winning the money!
also appreciate the addition to the standard co. Article 6. 5 L. 14/73, with the prescription of procedures for verification of the statements of all candidates. Unfortunately, what was said above is not enough. The discrepancy between the provisions of Article . 5 cit. L. 14/73 and modalities of the event referred to in Article . 21 L. 109/94 and succ. modif. remains unsurpassed.
You can not ask for the lowest price as part of negotiations and taken to maintain, in the case of error, the unit prices.
Especially when the anomaly is then evaluated on the basis the lowest price and not the individual unit prices.
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When the legislature (and not just regional) will be recalled that the procedures for the award of contracts are a tool to conclude a contract and that the selection of candidates should be based more on assessment of practical skills business (as they want the EU directives) than on a hurdling will be the dawn of a new day.
Objectively, it seems that measures like this will be the ad.
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