State Council, sez. III, 15.03.2022 n. 1792.

In terms of the expiry of the term to challenge the award of a tender, as stated by the Plenary Meeting no. 12 of the 2 July 2020 does not necessarily imply that from the overall term of 30 days + 15 days identified there (just the extension of the term in case of access ex art. 76, comma 2, d.lgs. 18 April 2016, n. 50) the days taken by the company to formulate the request for access must be subtracted. This thesis does not seem fully compatible with the principle of the effectiveness of judicial protection recognized by national law (arti. 24 Cost.) and European in the field of appeals relating to public procurement, ending up placing the competitor's burden of proposing access not only promptly, as certainly ordinary diligence, even before art. 120, comma 5, c.p.a., requires him to do, but even immediately, without leaving him even a reasonable minimum spatium deliberandi to assess the need or, anyway, the opportunity to access in order to appeal (where the administration itself, pursuant to the aforementioned art. 76, comma 2, d.lgs. n. 50 of the 2016, has fifteen days to allow or deny access to the documents).

Although the new procurement code of the 2016, in terms of access to tender documents, has not reproduced the provision of the previous art. 79, paragraph 5-quater, d.lgs. 12 April 2006, n. 163, which assigned to the competitor to propose the application for access ten days from the receipt of the legal communications by the contracting authority, the current discipline must be considered in continuity with the previous one, on the one hand not being allowed through the application for access to defer ad libitum the starting date of the appeal period, and on the other hand having to combine the accelerating purpose of the rules on litigation on public contracts with the need to protect the competitor who has exercised ordinary diligence in requesting access also in relation to the deadline assigned to the administration to provide.

From the overall term of 30 days + 15 days, identified by the plenary meeting in sentence no. 12 of the 2 July 2020 for the c.d.. time extension in the event of access, the six days that the competitor company took to request access to the documents must be subtracted means placing the burden of proposing access not only promptly on the competitor, as certainly ordinary diligence, even before art. 120, comma 5, c.p.a. requires him to do, but even immediately, without leaving him even a reasonable minimum time to deliberate to assess the need or, anyway, the opportunity to access in order to appeal, while, it must be remembered here, the administration itself, pursuant to art. 76, comma 2, d.lgs. n. 50 of the 2016, has fifteen days to allow or deny access to the documents, beyond the possible exceeding of this deadline for delaying or obstructive conduct.
Under the validity of the previous code of public contracts, the term available to the private individual to exercise their right of access was expressly set by the legislator in 10 days (cfr. art. 79, paragraph 5-quater, of the d.lgs. n. 163 of the 2006).

It is true that this provision has not been reproduced in the current code of public contracts, but it is equally true that the Constitutional Court has recently highlighted how an interpretation consistent with the logical-juridical context of reference leads to the belief that the time extension of the term for the submission of the appeal is "related to the exercise of access within fifteen days currently envisaged by art. 76 of the current "second" cod. of public contracts (e, previously, to the ten days indicated by art. 79 of the "first" cod. public contracts)» (Court cost., 28 October 2021, n. 204). There is therefore full continuity between the two regulatory regimes and the request for access presented by today's appellant is timely having regard to both.

A different interpretation, that claims to apply the mechanism of the so-called. "Subtraction of days" even from an application for access submitted within a contained and reasonable time (e, anyway, not exceeding the aforementioned fifteen days), it may not be entirely in harmony with the principles of legitimate expectations and proportionality.

The Section does not ignore that, following the pronouncement of the plenary meeting, there is a more rigorous orientation in this matter (v., for example, Cons. St., sez. V, 16 April 2021, n. 3127), according to which the request for access that the competitor presents once he has knowledge of the award is more timely, the more time will be available to you for judicial appeal, while «what cannot be allowed is that the competitor can, postponing the request for access to the tender documents over time, postpone the deadline for appealing the award to your liking "e, that is, i 45 days from knowledge of the award, but nevertheless believes that a reasonable deadline must be allowed for the competitor in order to request access, equal to that assigned to the administration to allow it ("Immediately and in any case within fifteen days": art. 76, comma 2, of the d. lgs. n. 50 of the 2016), without subtracting these few days (in this case just six), indeed already small because they are characterized by rigid decadent foreclosures inspired in this matter by an evident accelerating ratio, dai 45 days indicated by the plenary meeting, so as not to exceed in compliance with the same acceleration ratio, as a whole and to grant everything even in the event of a request (it's obtained) access, the maximum ordinary term of 30 days to challenge the tender documents.

Professional references