Revocation of proposed award for misrepresentation: act assessable in terms of mere expediency and convenience

The case

On June 13, 2018, the State Property Agency announced a public evidence procedure, to award real estate, belonging to the State Water State Property, as a concession.At the end of the procedure, the Contracting Authority issued a proposal for provisional award, in favor of the economic operator who had submitted the best bid.However, at the outcome of the checks provided for under Article 75, Presidential Decree No. 445 of 2000, the Agency revoked the provisional award, as it was ascertained that the successful bidder had a criminal conviction decree against him (for the crime of land invasion), which was not declared in the administrative documentation.The economic operator decided, therefore, to appeal the revocation measure because - in its opinion - the Commission had awarded the lot on the grounds of the economic convenience of the bid submitted, regardless of the untrue information found in the attached statement in lieu of certification.In Judgment No. 3591/2024, the Regional Administrative Court for the Region of Sicily, Catania branch, rejected the appeal, for the following reasons. Reasons for the decisionAccording to the judges, the provisional award is an endo-procedural act, which determines a not-yet-final choice of the successful bidder.Therefore, it falls within the discretionary power of the Administration to revoke it, assessable in terms of mere expediency and convenience, the exercise of which disregards the application of Art. 21 - quinquies of Law No. 241 of 1990, which requires for the exercise of revocation the existence of concrete reasons of public interest, such as to make the continuation of the tender operations inappropriate.In addition, the prevailing jurisprudential orientation - according to which forfeiture for false statements applies only in cases where it is such as to causally affect the adoption of the measure - cannot be applied in the present case, since, the operator since the call for tenders had been made aware of the obligation to declare that he had not been convicted of any criminal offenses. For further discussion:- Judgment No. 3591/2024, the T.A.R. for the Region of Sicily, Catania detached section;- Articles 45, 46 and 75, Presidential Decree No. 445 of 2000.