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Termination of public contracts for grave professional misconduct only if the decision has a final effect

  • 08/05/2017

Article 80, paragraph 5, letter c), of the new Italian Public Procurement Code (Legislative Decree no. 50/2016), provides that contracting authorities exclude from participation in a procurement procedure an economic operator which is guilty of grave professional misconduct.

Among such misconduct are significant deficiencies in the performance of a prior public contract or of a prior concession contract which led to early termination of that prior contract, either not contested before courts or tribunals or confirmed by a judge.

On this issue, with Judgment n. 1955 of 27th April 2017, the “Consiglio di Stato” has explained that, in case of serious professional misconduct, a competitor has to be excluded only if termination was either not contested or confirmed by a judicial decision having final and binding effect.

Moreover, the “Consiglio di Stato” has stated that the aforementioned interpretation does not contrast with the European legislation, pursuant to which the exclusion for grave professional misconduct is not compulsory.

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