The Council of State confirmed, with judgment 8248/2019, the definitive cancellation of the awarding of the tender for the treasury service of Cassa Forense.
The cancellation of this tender had already been ordered by the Lazio Regional Administrative Court of Rome, with sentence no. 2405/2019, which has since been appealed by Banca Popolare di Sondrio, with the adhesive intervention of Cassa Forense, which had requested full reform. Nonetheless, The Council of State, adhering to the reasons represented by Banco BPM in support of the contested sentence, rejected the appeal, thus concluding the cancellation of the tender for the treasury service of Cassa Forense.
This follows from Banca Popolare di Sondrio being awarded the European tender in 2018. The amount was worth 7.5 million for the assignment of the Treasury Service for the five-year period 2019-2023 following the resolution of the Board of Directors of the National Welfare and Assistance Fund Forensic (No. 543 of 5 July 2018).
Banca Popolare di Sondrio was joined in the proceedings by Giancarlo Tanzarella. Lawyer Monthly spoke to them regarding this.
Please share more about your involvement in the deal.
We represented the Banca Popolare di Sondrio in the legal action concerning the legitimacy of the acts of the bid to tenders promoted by the Cassa Nazionale Forense to select the Bank Institute to assign the management of the Treasury Services for the next three years.
The volume of business for the precedent period of assignment, run by the Banca Popolare di Sondrio itself, was worth about €15 billion.
What was interesting about this case?
This lawsuit offered, as of particular interest, the opportunity to frame in a new perspective the legal matters concerning the criteria when nominating the members of the tender committee.
The question posed regarded the appointment as tender commissioners of Cassa Nazionale Forense employees and involved the precedent period of management of the same service.
It was, therefore, doubted that a conflict of interest could arise due to the specific knowledge of the previous management run by the Banca Popolare di Sondrio, by those members of the board.
This is a subject of general interest as it concerns not only the specific service of the treasury, but any possible public procurement, as it comes to nominate the members of the evaluation committee, to the new bid participates from the previous economic operator.
It will, therefore, be very interesting to see according to what criteria the new members of the evaluation committee be chosen with.
What challenges did you face?
Given the impossibility to guarantee that no kind of special treatment in favour of the outgoing manager is made by those employees of the contracting authority who had previously been assigned to that specific service, the Court opted for a rigid interpretation of the rule of law, in the sense that it prevents the members of the evaluation committees to be chosen among experts of the matter belonging to the contracting authority, no matter the fact that the law does not specifically forbid this chance.
Following the decision of the Consiglio di Stato, the Cassa Nazionale Forense is forced to confirm a new bid to offer to the service of the treasury.
It will, therefore, be very interesting to see according to what criteria the new members of the evaluation committee be chosen with.
