Ordinary Jurisdiction and Public Service Award: Commentary on Judgment No. 15383 of 2024

Judgment No. 15383 of 2024 by the Court of Cassation offers important clarifications on the applicable jurisdiction in matters of public service award, especially in the intermediate phase between awarding and contract stipulation. In particular, the case at hand involves the revocation of the award by the administration, which ordered the calling of the surety guarantee, leading to a dispute by the awardee.

The Context of the Judgment

In the specific case, the public administration revoked the award of a service contract, claiming that the awardee had submitted an unsustainable economic offer. However, the appellant contested the legitimacy of this revocation, arguing that the administration had violated the principles of fairness and good faith, as the tender notice contained incorrect information regarding the historical interventions required. This led the awardee to formulate an offer that, in light of the correct information, would have proven unsustainable.

Public service award - Intermediate phase between awarding and contract stipulation - Declaration of forfeiture by the public administration and calling of guarantees - Contractor's disputes and compensation claim - Jurisdiction of the ordinary judge - Basis - Case law. In the context of awarding a public service, the claim for a declaration of illegitimacy of the act by which the administration, before the contract stipulation, revoked the award, ordering the calling of the surety guarantee, and the consequent compensation claim fall under the jurisdiction of the ordinary judge, where the administration is accused of violating not the rules of the competitive procedure, which may lead to the exclusion of the competitor from the tender, but the behavioral obligations of fairness and good faith, as it concerns a matter that affects the executive phase of the relationship, even if it did not result in the stipulation of the supply contract. (Principle applied with reference to the claim aimed at ascertaining that the contracting authority had violated the duties of fairness and good faith, by indicating in the tender notice a historical data of interventions underestimated compared to the actual one, inducing the company to formulate an unsustainable economic offer, which then led to the revocation of the award before the contract stipulation).

The Jurisdiction of the Ordinary Judge

The Court established that the jurisdiction for contesting the legitimacy of the award revocation act and the calling of the surety guarantee falls under the ordinary judge. This is fundamental as these are issues that do not solely concern the competitive procedure but also the observance of the principles of good faith and fairness, which are essential for the proper conduct of a public contractual relationship.

• Relevance of good faith in tender procedures.
• Impact of incorrect information on the awardee's behavior.
• Possibility of compensation for damages arising from unlawful acts by the administration.

Conclusions

Judgment No. 15383 of 2024 is part of a line of case law that emphasizes the importance of fairness and good faith in the relationships between public administration and private parties. This legal precedent could have a significant impact on future tenders and the management of public contracts, strengthening the protection of economic operators against unfair conduct by contracting authorities.