Consiglio di Stato, Sez. V, May 25, 2025, no. 4163. Pres. Urso, Ext. Rovelli.
The Council of State confirmed in its entirety the first instance judgment of the Puglia – Lecce Regional Administrative Court, by which the entire tender procedure announced by DRI D’Italia had been annulled, given the applicability to the latter of the Public Contracts Code, a circumstance that had instead been contested by the Contracting Authority. Section V of the Council of State, in fact, noted the applicability of the regulations on public contracts by express provision of law(pursuant to Article 1, paragraph 1-quater of Decree-Law No. 142/2019, as amended by Decree-Law 144/2022).
On the merits, the Board also found that the winning company’s bid could not be considered an improvement, but rather was not in accordance with the tender documents, configuring an aliud pro alio, which should have resulted in its exclusion. The successful bidder had, in fact, submitted an “EP” bid, lacking the construction phase of the work, rather than an “EPC” turnkey bid, as required by the lex specialis.
The Council of State therefore rejected DRI D’Italia’s main appeal and concluded that the latter should re-tender under the rules of the Public Contracts Code, which were not complied with in this case.