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Public procurement: recent decision on the general principle of unchangeability and correction of the material error of the offer

  • 14/06/2021

The Campania Tar, section I, with sentence of 21 May 2021, n. 1278, held that the general principle of unchangeability of the offer, in force in the field of public procurement (to protect competition and equal treatment between economic operators, as well as the impartiality and transparency of the administration's actions), has with regard to the offer as formulated in the tender, but does not concern the justifications provided in the sub-procedure for verifying the anomaly. It follows that, where the economic operator has formulated two successive justifications, no invalidating effect can be recognized to the change that has occurred, between the first and second justifications, in some elements of the offer (in this case, in the costs of labor , and in profits), as the change must be related not to the first justifications, but to the offer. The correction of the clerical error (meaning by this one characterized by evident recognizability, assessable ex ante, i.e. without carrying out particular in-depth analyzes on the point), which the competing company has incurred in indicating an element of the offer, does not entail a it is inadmissible to alter the offer nor does it assume an invalidating value. The notification of the first instance appeal made to an incorrect address is null (and not non-existent) since, as a general procedural principle, the error in identifying the place where the service of the document must be performed, even if it is devoid of any connection with the recipient, configures a mere discrepancy from the legal model and does not relate to the essential constitutive elements suitable for making a deed recognizable as a notification of the deed.

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