Decision n. 11322, 29th December 2023, Council of State, sec. III, Italy
Article(s) in Directive 2014/24/EU: Art. 56, Art. 58
Topic: Selection criteria, Principle of result
Member State: IT
Court/rev. board: Council of State
1. IMPLEMENTATION / RELEVANT NATIONAL LEGISLATION
Art. 34, Art. 83, Art. 87, para. 2, Art. 144, Legislative Decree n. 50/2016 (former Public Contracts Code).
2. FACTS
The case concerned the verification of qualification requirements related to the awarding of the school catering service in some public schools aiming at a reduced environmental impact. The award was annulled because it was found that the applicant did not possess some certificates required by the tender documents (ISO 14001 and EMAS).
The applicant challenged the annulment measure in front of the first instance Court. This latter rejected the claim on the grounds that, amongst others, the certificates constituted a requirement for participating in the tender and that the bidder failed to prove that they lacked the certificate for reasons that did not depend on their willingness. Moreover, it confirmed the legitimacy of the contracting authority’s decision to include the clause requiring the certificate.
The applicant then appealed to the Council of State, claiming that: 1) they would have been able to prove compliance with the EMAS’ requirements also through a third-party compliance assessment; 2) the clause requiring the certificate was null and void in the light of the principle of proportionality (Art. 83, para. 8, Legislative Decree n. 50/2016); and, most importantly, 3) the annulment was not in line with the principle of result – because the measure was grounded on merely formal reasons that hindered the achievement of the contract’s object, which, according to the operator, was to provide the service at stake.
The principle of result was introduced by Art. 1 of the new Italian Public Contracts Code (Legislative Decree n. 36/2023). It foresees that contracting authorities must achieve contract award and implementation in the shortest time possible and at the best conditions for the buyer. The principle concerns also the best possible ratio between quality and price, requiring the respect of the principles of legality, transparency and competition. Art. 1, para. 4, adds that: “The principle of result constitutes the overriding criterion for the exercise of discretionary power and for the identification of the rule in the concrete case (…)”.
3. JUDGMENT
Both the first instance Court and the Council of State eventually held that the exclusion was actually in accordance with the principle of result whereby the contracting authority considered the applicant’s tender not to be in line with the protection of the interests underlying the public contract, as expressed in the tender documents, or even the “best tender” in terms of result.
In this regard, it was emphasized that the requirement at stake was intended to safeguard the substantial match between what was offered and what had been demanded. According to the Court, a less strict verification of the requirement of certifications, leaving the matter to organizations or professionals that would not offer the same guarantees, “would expose administrations, and above all the service users, to the risk of a service lacking the required characteristics”. Therefore, the Council recalled that the issue of demonstrating the quality requirements is not a problem of form, but of substance. The Court hereby recalled the expected result of the contract at stake, by specific choice of the contracting authority: this was not merely the provision of the school catering service as such, but that of a service characterized by compliance with environmental policies for sustainable development.
On this occasion, the Council of State clarified that the reference to the principle of result integrates the parameters of lawfulness of administrative action with regards to a category that implies substantial – and not formal – verifications, of the effectiveness of the achievement of the objects as well as of abstract conformity to the regulatory paradigm. The principle of result thus did not allow to award the tender to an operator lacking the qualitative requirements indicated in the tender documents.
