Decision n. 8173, 5th September 2023, Council of State, sec. V, Italy
Article(s) in Directive 2014/24/EU: Arts. 56-57, 78-82
Topic: Anonymity – Signs of recognition
Member State: IT
Court/rev. board: Council of State
1. IMPLEMENTATION / RELEVANT NATIONAL LEGISLATION
Art. 155 of of Legislative Decree no. 50/2016 (former Public Contracts Code)
2. FACTS
A company had participated in a procedure launched by Invitalia for an international public design contest for the intervention on the contract of development of the recovery and re-functionalisation of a former jail. The award was contested before the Regional Administrative Tribunal for Lazio on the grounds of violation of the principle of anonymity by the winner. The award was annulled and the winner challenged that measure.
The contract documents specifically foresaw that the operator should have preserved the anonymity, in the sense that “files that will be uploaded shall not allow to identify the property of the same files”. The rule is also contained in the Italian Public Contracts Code (Art. 155 of former Public Contracts Code).
According to the appellant, the application of the principle should not be absolute. On the contrary, the case law would suggest that for the principle of anonymity to apply, the existence of two elements should be verified: 1) the fact that the element allowing the recognition is actually able to be the identification element, and 2) the intentionality of the operator to make its work recognizable. This approach was developed as regards the evaluation of the written exams in public competitions to recruit personnel (Consiglio di Stato, 20 November 2013, n. 26): in this context, the Council of State had established that the principle should not be interpreted in a strict and absolute manner, so to avoid that, any time that an exam potentially allows for recognition of its author, the exam will be deemed void. On these lines, the appellant noted that the name of the consultant in question was used in the documents exclusively as a source of the data presented, and not as a sign of recognition, and that it did not lead to the identification.
3. JUDGMENT
The Regional Administrative Tribunal, in dismissing the appeal, underlined that a series of experts’ names were mentioned in the documentation at stake and that they indicated, unequivocally, that such experts belonged to the working group of the winner. The Council of State remarked that the exclusion followed the examinations undertaken by the contracting authority of the whole set of documentation, which showed in detail (e.g. showing that by extracting certain parts of text in certain formats, the email address of experts within the winner’s group came out) why the indications included in the documentation led to link the experts to the offer of the winner – thus not preserving the principle of anonymity. In other words, it ruled that the principle must be guaranteed at the time of the evaluation of the design submissions, which shall not – in any way – be traceable to the author of the design. This case is relevant because the Council of State has favored a very detailed and in-depth assessment undertaken by the contracting authority with the aim of understanding whether the principle of anonymity was violated or not. The Council eventually concluded that the award was unlawful and dismissed the appeal.
[Interesting case to be compared to the Portuguese case of 18th April 2023 of the SAC, case 02524/21.7BEPRT, on the same principle]
