Genoa, the Tar cancels the tender for the dam: but the works can continue. The risk of a millionaire compensation

GENOA. The Regional Administrative Court of Liguria cancels the award of the contract for the new breakwater in Genoa. But the work, at least for now, can go ahead. This is the sensational verdict of the Regional Administrative Court, which accepted the appeal presented by the Eteria stable consortium and Rcm Costruzioni which contested the legitimacy of the decree awarding the contract to the consortium made up of Webuild Fincantieri and others by the Port System Authority .

The ruling points out, however, that since it is a work financed in part with funds from the Pnrr, a rule is applied according to which “the cancellation of the assignment does not lead to the termination of the contract already stipulated” and, therefore, for now the work can proceed. Even if the sentence opens the door to unpredictable scenarios.
If the ruling of the Liguria Tar were to be confirmed in the other levels of the administrative judgement, the Port Authority, which according to what is learned from qualified sources is preparing the appeal to the Council of State, would have to pay a millionaire compensation. If the illegitimacy of the tender were recognized, again according to the same source, the Court of Auditors could also intervene against the Port Authority, hypothesizing the charge of tax damage.

The reasons for the Tar

The administrative judges contested the Webuild Consortium with the material produced for the purpose of awarding the work, in particular the references – expressly requested by the Port Authority – to “three similar works (at the dam, ed.) carried out in the previous five-year period”.

The consortium presented the documentation relating to these works:

1) construction of the new multifunctional platform in the port of Vado Ligure; contracting station: Western Ligurian Sea Port System Authority; total amount of the works: € 280,458,622.25; subject who performed the service: 100% Fincosit srl;

2) Tuas Terminal Phase 1 – Singapore; contracting station: MPA – Maritime and Port Authority of Singapore; total amount of the works: € 1,521,152,855.00; subject who performed the service: SIDRA spa through Dredging International (DEME Group) – 51%;

3) New Container Terminal “Zagreb Pier” in the commercial port of Rijeka (Croatia); contracting authority: Port Authority of Rijeka (Croatia); total amount of the works: € 75,241,019.97; subject who provided the service: Fincosit srl 50.59%.

The judges wrote: “Considering the amount of the works covered by the contract for the outer breakwater of the Port of Genoa (928,646,927 euros), it is evident that, with the same affinity of the works, work no. 2 was, for the amount of the works (1,521,152,855 euros), the one by far the most significant, and therefore more “significant” of the “ability to perform the service from a technical point of view”, compared to works no. 1 (280,458,622 euros) and no. 3 (75,241,019 euros), for much lower amounts. However, from the same document we learn that the person who actually performed the service relating to work no. 2 would be “Sidra spa through Dredging International (DEME Group) – 51%”: an indication that is by no means obscure and not at all perspicuous, which is clear only in revealing that the work is not directly attributable, not even pro rata, to the principal of RTI Webuild Sidra spa , and which therefore cannot be considered significant of its ability to perform the service from a technical point of view”.

“The fundamental work no. 2 – concludes the Tar was not carried out by the company Sidra spa, so that it could not be positively assessed as objectively significant of its construction capabilities”.

The role of the examining commission

“It happened instead – write the judges of the Tar – that the panel of experts, in evaluating the Webuild offer as regards the criterion of similar works, made its own assessments as follows: “The three works presented by the EO present in all cases a high level of complexity and a high degree of affinity with the processes envisaged in the previous procedure. The amounts of the works are in the first case [realizzazione della nuova piattaforma multifunzionale nel porto di Vado Ligure, n.d.r.] lower, in the second case [Tuas Terminal Phase 1 – Singapore, n.d.r.] greater and in the last case [Nuovo Terminal Container “Zagreb Pier” nel porto commerciale di Rijeka in Croazia, n.d.r.] significantly lower than the amount envisaged by this procedure. It is believed that the OE is perfectly capable of carrying out the works foreseen in the PFTE project of the new dam of the port of Genoa”. It seems to the collegium quite clear that the work n. 2 (Tuas Terminal Phase 1 – Singapore), although it was not directly attributable to Sidra spa, was not only positively evaluated, but even assumed – in the evaluations of the panel of experts – a determining and decisive importance, given the detected inferiority in amount of the other two jobs compared to the amount based on the tender, inferiority defined even as “significant” as regards job no. 3, relating to the New Container Terminal “Zagreb Pier” in the commercial port of Rijeka in Croatia”.