The REGIONAL ADMINISTRATIVE COURT unblocks the work for the requalification of the Polisettoriale Pier of the port of Taranto



With issued decree yesterday the judges of the center of C#lecce of the Regional administrative court for the Apulia have rejected to the resource introduced from CCC Yards Constructions Concrete for the suspension of the effectiveness of the provision with which in August Harbour Authority of Taranto he had cancelled the award of the contest for the allocation of the work of requalification of the Polisettoriale Pier of the apulian port in favour of the grouping of CCC/Matarrese/Icotekne enterprises for defect of requirement of contributive regularity. The harbour agency had adjudicated the contract to having constituted the RTI Stable Consortium Great Scrl Work, second classified in the contest ( on 29 August 2014).

Moreover the Regional Administrative Court for the Apulia has pronounced also a sentence, that we publish below, with which has rejected to the resource introduced from the agency for the job New Frontiers Lavoro Spa against the Harbour Authority of Brindisi and the action of participation to opponendum asked from the Harbour Company Nicholas and Salvatore Briamo Soc Coop Arl for the cancellation of the ban of contest for narrow procedure indetto from the Harbour Authority for the location of the enterprise to authorize according to the supply of temporary job in favor of the operating enterprises harbour in the port of Brindisi of art. the 17, codicil 2, of law 84/94.

N. 02449/2014 REG.PROV.COLL.
N. 00575/2009 REG.RIC.

ITALIAN REPUBLIC
IN THE NAME OF ITALIAN PEOPLE
The Regional administrative court for Puglia
C#lecce - Section Before

it has pronounced anticipates
SENTENCE
SENTENCE

on the resource number of general registry 575 of 2009, integrated from reasons added, proposed they give:
New Frontiers Lavoro Spa, represented and defended from the avv. Alessandro Caiulo, with address which elected near Giancarlo Caiaffa in C#lecce, via B Ravenna, 2;
against
against

Harbour authority of Brindisi, represented and defended from the Legal profession Distr.le C#lecce, domiciled in C#lecce, via Rubichi;
and with the participation of
and with the participation of

to opponendum:
Harbour company Nicholas and Salvatore Briamo Soc Coop Arl, represented and defended from the avv. Michele Muscillo, Tiziana Stefanelli, with address which elected near Antonio Guglielmo in C#lecce, via Filippo Bacile, 3;
for the cancellation
for the cancellation

of the Ban of Contest for narrow procedure, indetto from the Harbour Authority of Brindisi for the location of the enterprise to authorize according to the supply of temporary job of art. the 17, codicil 2, of law 28/1/1994 n. 84 (performance of temporary harbour labor in favor of the operating harbour enterprises in the port of Brindisi), of which to the invitation offering sent from the same Harbour Authority to the recurrent one with racc. a.r prot. n. 2166 of the 2/3/2009, in the part in which, in the letter "l" of the contest ban, it previews to exclusion pain that the concurrent enterprise must have a equipment of staff in possession of a not inferior total professionality to 60 years of job/man achieved in the field of the harbour operations calculated on 50% of the staff and consequently whereby in the invitation to offer establishes that in the envelope "technical B-Offer" it must be inserted, to exclusion pain, the following documentation: documentary demonstration of the requirement of which literally l) of the Ban of contest, that is to say of having a equipment of staff in possession of a not inferior total professionality to 60 years of job/man achieved in the field of the harbour operations, as defined from art. the 16 of the law n. 84/1994, calculated on 50%

of the staff. Such requirement could be proven with the exhibition of copy of the registries of the harbour workers released from the harbour Authorities and/or Marine where the workers are enrolled; the presentation of the nominative directory of the workers in possession of requirement is admitted, with the indication of the respective personal identifying data and of the period and the ports in which the same ones they have covered the qualification of harbour workers, such directory will have to be undersigned from the legal representative of the competitor second the forms of which to the D.P.R n. 445/2000; let alone of the same ban in the part in which, previewing it obligation for the enterprise highest bidder to assume in employment contract continuity all the staff in equipment to the subject of which to art. the 21, codicil 1, lett. B) of 84/94 L. operating in the Port of Brindisi, not specific how many and which are these workers, their seniority and their duties and how much other necessary one to afford to the competitors a calculation of costs and convenience; let alone of every other action presupposed, connected and/or consequenziale and in particular art. the 17 emanated Regolamento according to codicil 10 of the law 84/94 and Lines Guide for the location of the enterprise to authorize to the supply of temporary job, in the limits of the interest of the recurrent one;

let alone, for the cancellation, advance suspension of the execution, the minutes of commission of contest of the 31/3/2009 of opening plichi one with contextual temporary award, whose emanation is communicated to the recurrent one with racc. prot. 4448 dated 24/4/2009, received in date 4/5/2009, while the copy of the same minutes is delivered after formal demand for access to the actions, in date 7/5/2009;

Seen the added and relative resource, reasons the attached ones;
Seen the certificate of incorporation in judgment of the Harbour Authority of Brindisi;
Seen the defensive memories;
Visas all the actions of the cause;

Reporter in the audience public of the day 10 July 2014 dott.ssa Patrizia Moro and heard the avv. of the Simona Libertini State;

Considered and considered in fact and right how much follows.

FACT and RIGHT
FACT and RIGHT

1. Performance of temporary harbour labor in favor of the operating harbour enterprises in the Port of Brindisi) for the following reasons is appealled the epigrafato ban of contest for narrow procedure indetto from the Harbour Authority of Brindisi for the location of the enterprise to authorize according to the supply of temporary job of art.17 codicil 2 of L. 28.1.1994 n.84 (:

Serious violation of the norm of which to I decree legislative 10 september 2003 n.276 of performance of the delegations in occupation matter and labor market of which to the 14 law February 2003 n.30, finalized, also in order to adapt itself to the European norm, the realization of an effective and coherent system of intended instruments to guarantee transparency and efficiency at the market of the job and to improve the abilities to insertion of the unemployed people and of how many they are in looks for of a first occupation with simplification and simplification of the procedures of encounter between supply and demand of job.

Excess to be able for irrationality and unreasonableness as well as in contrast logical between prescription contained in the same ban in particular between the letter L of art. the V and the letter F of art. VIII – treatment disparity – the inintelligibilità, equivocation, incongruità, uncertainty and other reasons.

1.1. With added reasons deposited in date 19 May 2009 the recurrent one also has appealled the minutes of the commission of contest of the 31.3.2009, of bid opening with contextual temporary award for the following reasons:

Excess at the opening to be able also in independent way for the erroneous foundation to all purposes and effects and by right to have proceeded of the plichi.

In date 23 April 2009 has been formed in judgment the Harbour Authority.

With action deposited in date 4 May 2009 the Harbour Company Nicholas and Salvatore Briamo has proposed action of participation to opponendum asking the reiezione for the resource.

With precautionary decree 575/2009 the Section has rejected the precautionary request.

In the public audience on July 10, 2014 the cause is introitata for the decision.

2. The resource is groundless and must be rejected.

2.1.Con a first order of censorships, the recurrent one appeals the lex specialis in the part in which the same one it previews, to exclusion pain, than the concurrent enterprise man must have a equipment of staff in possession of not inferior total professionality to 60 years of job/achieved in the field of the harbour operations, calculated on 50% of the staff.

According to such planning, the violation of the d.lgs.276/2003 would derive some which pursues the scope “to adapt itself to the European norm, to the realization of an effective and coherent system of instruments intended to guarantee transparency and effectiveness of the labor market and to improve the abilities the abilities to insertion of the unemployed people and of how many they are in looks for of a first occupation with simplification and simplification of the procedures of encounter between supply and demand of job”, rationalizing the system of placement “assigning to society as that recurrent one, the task to supply professionally necessary labor for the development of the most varied activity, comprised that of the job there harbour”.

2.2. The matter of the harbour operations is regulated by L. 84/1994, which, in particular to the art.16, disciplines the supply of temporary job, specifying that the same one is supplied, also in exception to article 1 of the law 23 October 1960, n. 1369, to the enterprises of which to article 16 and 18 for the execution of the harbour operations and the authorized harbour services according to article 16, codicil 3, finding, to the codicil 2 that the harbour authorities or, whereby not instituted, the marine authorities, authorizes the distribution of the performances of which to codicil 1 by an enterprise (whose activity must be exclusively revolt to the supply of temporary job for the execution of the operations and the harbour services) to second characterize an accessible procedure to Italian and communitarian enterprises. It dictates enterprise, that it must be endowed of adequate staff and resources own with specific characterization of professionality in the execution of the harbour operations, does not have to indirectly exercise directly or the activities of which to article 16 and 18 and activities carried out from the societies of which to article 21, codicil 1, letter a), neither it must be imprisoned directly or indirectly from or more enterprises than which to article 16, 18 and 21, codicil 1, letter a), and not even it does not have to stop participation also of minority in or more enterprises than which to article 16, 18 and 21, codicil 1, letter a) ; in case contrary, it must be engaged to dismettere said activity and participation before the release of the authorization.

The next one art.17 disciplines the supply of temporary harbour job to the enterprises, of which the articles. 16 and 18, for the execution of the harbour operations and the authorized harbour services according to art. the 16, codicil 315.

Codicil 2 previews that the distribution of the temporary performances, by an Italian or communitarian enterprise, is authorized by the harbour authorities or, whereby not instituted, by the marine authorities.

The activity of said enterprise, exclusively revolt to the supply of temporary job, must be second characterized an accessible procedure to Italian and communitarian enterprises.

The enterprise, moreover: - it must be endowed of adequate staff and resources own with specific characterization of professionality in the execution of the harbour operations; - it does not have to indirectly exercise neither directly neither one of the activities of which to artt.16 (the harbour Operations) and 18 (Concession of areas and docks) of Legge n. 84 of 1994; - it does not have to exercise the carried out activities from the societies of which to art. the 21, codicil 1, letter a) (that is second the types of societies previewed in the book fifth, titles V and YOU, of the civil code); - it does not have to be prisoner, neither directly, neither indirectly, from or more enterprises than which to the articles. 16, 18, and 21, codicil 1, letter a), so as it does not have to stop participation, also of minority.

Such dispositions are therefore potentially times to favor proliferating of so said permanent establishments in the harbour areas, which conventional legal truths of matrix that involve interests publics of particular interest, attended that the demanded performances are of specialized type with specific qualification and direction of the attache's to the performances, with assumptions of the consequent responsibilities towards the outsourcer.

In truth, art. the 2 of the D.M. 6 February 2001, n. 132, of performance of art the 16, first codicil of the law n. 84 of the 94, preview that the harbour services comprise “the entrepreneurial activities consisting in the specialized performances, that they are complementary and accessory to the cycle of the harbour operations, to become upon request of subjects authorized to the development also in self-handler of the harbour operations” and that “the specialized character of the performances to admit as harbour services is constituted by the particular technical competence of the supplier, represented also from the availability of equipments and/or machinery specifically dedicated to the supply of the service”.

Art. the 2 in precise mention also that “the complementary and accessory character of the performances to admit as harbour services are constituted by the circumstance that, be a matter of activities also distinguished from those making part of the cycle of the harbour operations, is functional to the profitable development of the same one and that they contribute to improve the quality of this last one in terms of productivity, celerity and slimness”.

In such normative picture, legitimately the Harbour Authority, in characterizing requirement of the necessary seniority, to demonstration own of inherent requirement the possession of endowed staff of the professionality and abilities demanded from the recalled legislation, has demanded which requisitioned minimal in order to participate to the contest, that of the seniority job 60-year-old/man to be estimated on 50°% of the staff.

Such prescription, as well as logical and coherent with the cited normative dictation, does not turn out onerous and detrimental excessive for the enterprises participants since, as effectively found from the harbour Authority, it turns out sufficient that the participants demonstrate to possess an organic equipment of 6 dependent of which 3 in possession 20-year-old of harbour job.

Of it derives that the choice of the Administration totally appear respectful of the functional limits of the logicità and reasonableness, its pertinence and congruity against the scope persecuted and of the absence of internal contraddittorietà, and does not bring some prejudice to the principles of impartiality and equal visibility, as it does not shrink, beyond the bare minimum and the organizational requirements dictated by the specificity of the service, the audience of the potential competitors.

2.3. The censorship does not hit the mark not even with which the recurrent one appeals the actions of contest in the part in which the same ones they preview the necessity to assume the staff of which to the art.21 c.1 lett.b of the l.84/1994.

In truth, such prescription turns out consistent and faithful to the art.17 c.c of the L.84/1994 which previews that “the harbour authority and, whereby not instituted, the marine authority characterize the procedures in order to guarantee the continuity of the relationship of job in favor of the associates and of the dependent of the enterprise of which to the art.21, codicil 1 lett.b) in confronts of the authorized enterprise”.

Such disposition conjugates the necessity to guarantee the specialization and typicity of the operating staff in the harbour services with the working continuity, in order to assure that the necessary performances are carried out by subjects that have matured a sure experience and professionality.

Neither the absence of sufficient determinatezza can fondatamente be supported about the relative costs, attended that the same ones could be easy evincibili from the registries of the workers of the outgoing enterprise, registries for which the recurrent one has not asked the ostensione opportunely.

2.4. Of the groundless pairs they are the censorships expressed in the added reasons, with which the recurrent one supports that the contest commission, in the blackberries of the decision of anticipates resorted, would not have had to proceed at the opening of the envelopes and to the consequent temporary award.

Aloof the genericità of the reason, must also reveal that not sussistono reason legislative ostative to prosieguo of the contest operations in the presence of an adverse resource the lex concorsualis, being up to the Administration also always an appraisal in order to the there express censorships and the likely fondatezza/admissibility or less of the same ones.

In the species, the acclarata infondatezza of the legitimate main resource the appraisal carried out from the A.P about the prosieguo of the contest operations.

In conclusion the resource must be rejected, also sussistendo justified reasons that allow the compensation of the argument expenses.

P.Q.M.
P.Q.M.

The Regional administrative court for the C#lecce Apulia - Section Before

definitively pronouncing on the resource, as in proposed epigraph, it rejects it.

Compensated expenses.

It orders that sentence anticipates is executed by the administrative authority.

So decided in C#lecce in the Council Chamber of the day 10 July 2014 with the participation of the magistrates:
Antonio Cavallari, President
Patrizia Moro, Councilman, Drafter
Roberto Michele Palmieri, Legal secretary

THE DRAFTER

THE PRESIDENT

DEPOSITED IN SECRETARIAT
The 09/10/2014
THE SECRETARY
(Art. 89, Co. 3, cod. proc. amm.)
DEPOSITED IN SECRETARIAT
The 09/10/2014
THE SECRETARY
(Art. 89, Co. 3, cod. proc. amm.)