Regional Administrative Court Of Lombardy – Milan, Section 4 – Judgement 9th of February 2018, no. 386
The case in question arises from a first appeal made by the plaintiff, a company which provides instruments to regulate road traffic and to detect of infringement of traffic rules, by challenging the call for tender and other tender documents with which the Province of Varese had launched a project finance procedure for the awarding of the installation, rent and maintenance services of instruments that detect infringement of traffic rules and related performances. The Province and the proposer company entered an appearance. Afterwards, the provincial administration annulled in self-defence the acts of the above mentioned project finance procedure through the decision of the President of the Province and a subsequent executive determination. The ground of the annulment focused on the fact that the proposed service cannot be included in the ambit of service concession nor in the one of partnership, since it is a service contract. As a consequence, the proposer company appealed in turn for the annulment of those decisions. The Province and the plaintiff in the first appeal entered an appearance for the appeal to be rejected. The Administration sustained that, in this case, in the contractual scheme proposed by the company a type of “operational risk” as required by law cannot be identified. The private operator’s activity was not subject to risks nor “market changes”: the payment of a fixed monthly charge in favour of the operator was expected, other than the payment of the software license of the tender management system and a percentage of the amount collected through the financial penalties inflicted to users. The Court believed that the case in point cannot be included within the ambit of partnership, since the type of risks ex art. 180 par. 3, namely demand, construction and availability risks, was lacking. It has thus rejected the appeal and declared this to be a service contract. The Court has also rejected the claim for compensation submitted by the plaintiff, following the path of the administrative case law, by sustaining the groundlessness of the civil liability in the project finance hypothesis, since there is not a pre-contractual duty with reference to the positive evaluation of the PPP proposal.