Brescia Court Reinstates Desenzano Company in Enel Notebook Tender
An Italian computer company from Desenzano, excluded from a public tender issued by Enel for the supply of 1,500 notebook computers, worth at least 6 billion lire, has obtained from the Tar of Brescia the opportunity to be reinstated in the tender. The “Megabyte”, a joint-stock company based in Desenzano, where it was founded about ten years ago and has grown significantly in the IT sector, submitted its application to participate in the contract for the supply of 1,500 notebooks issued by Enel on January 22nd: a deal worth over 6 billion, considering the market price of a notebook. Subsequently, Enel announced its exclusion, much to the surprise of the company’s managers from Garda. This led to an appeal to the Tar.
In its detailed brief, lawyer Alberta Fioretti, who represented the interests of “Megabyte”, demonstrated how the public authority had initiated a procedure in clear violation of the current regulations concerning public supply contracts, effectively denying “Megabyte” the opportunity to compete in a tender in which it was legitimately eligible to participate. This constituted a breach of interests, also extended to other companies excluded from the computer bidding process.
Requirements and violations in Enel’s tender
In its tender, Enel, assisted in the appeal by lawyers Stefano D’Ercole, Luigi Medugno, and Enrico Codignola, requested a series of information to verify the economic-financial capacity of the competitors, well beyond the scope of the supply. Among the minimum conditions required by Enel, for example, there was one specifically concerning a declaration from the competitor certifying activities such as design, assembly, testing, etc., and demonstrating that in the last three years, they had produced at least 500,000 notebook computers.
«Such a requirement – argued lawyer Fioretti – represents a blatant violation of the European Community regulations on tenders; indeed, the criterion identified by administrative jurisprudence refers to a value of 50 percent of the tender amount.» An inconsistency that emerged from Enel’s tender is precisely related to its demand for “a production of at least 500,000 computers during the three years prior,” which costs around 4 million each.
In essence, “Megabyte” would have had to prove a turnover of at least 2 trillion lire over the previous three years, or three hundred times the tender amount (about 6 billion). Moreover, “Megabyte” also noted that “the manufacturer’s declaration, which is requested at the moment of registering the competing companies, constitutes a violation of the principle of confidentiality of the offer and the principle of equal treatment.” In other words, knowing in advance the names of the manufacturing companies providing the products could enable an early price estimate and advance knowledge of competitors.
Tar’s decision and consequences
The Tar (president rapporteur Francesco Mariuzzo, councilors Conti and Farina) accepted the arguments of “Megabyte” and ordered the electricity authority to immediately re-admit the company. Truth be told, numerous companies have recently raised complaints about public administrations whose tender procedures are not always transparent.
Sometimes, a mere technicality is enough to derail a company’s expectations. In times when maximum transparency is called for, such situations only fuel controversies between citizens and public administrations.