Late payment of the Anac contribution: the exclusion measure is unlawful

The case

Through an appeal filed with the Regional Administrative Court of Friuli-Venezia Giulia, the appellant company challenged the exclusion measure issued against it for failure to pay the Anac contribution within the deadline set for submitting the bid.The Ministry of the Interior and Anac appeared in court to oppose the appeal.With ruling no. 289/2024, the judges upheld the company’s appeal for the following reasons. Reasons for the DecisionThe obligation to pay the Anac contribution does not, in itself, constitute grounds for excluding a participant due to non-payment. Indeed, a bid is deemed admissible provided the contribution is paid, even if belatedly, through the mechanism of procedural regularisation. According to the judges, the decision is based on three key points:1) Article 1, paragraph 67, of Law no. 266 of 2005, which should be interpreted to mean that a bid is admissible as long as the contribution has been paid, even if not on time;2) The principle of exclusivity for grounds of exclusion under Article 10 of the Public Contracts Code;3) The principle of procedural regularisation, which applies when the exclusionary cause (or the obligation to pay the contribution) is not clearly evident because it was not included in the special tender specifications. Additionally, the Court of Justice of the European Union has declared that, in cases where an economic operator is accused of failing to comply with an obligation not explicitly established by the tender law or national law, the principles of equal treatment and proportionality must be interpreted to allow the operator to rectify its position and fulfil the obligation within a deadline set by the awarding authority. For further reading:- T.A.R. Friuli-Venezia Giulia Trieste, Section I, no. 289/2024;- T.A.R. Lazio Rome, no. 16458/2024;- Article 1, paragraph 67, Law no. 266/2005;- Article 10, Legislative Decree no. 36/2023.