Decision n°7053/2021, 20 October 2021, Council of State, sez. V, Italy (ENGLISH VERSION)

Article(s) in Directive 2014/24/EU: Art. 67 
Topic: Most economically advantageous tender/ Award criteria 
Member State: ITA 
Court/rev. board: Council of State, sez. V, 20 October 2021, n. 7053 

1. IMPLEMENTATION / RELEVANT NATIONAL LEGISLATION

Author: Edoardo Tozzo, Review: Michele Cozzio

Art. 95 (Contract award criteria), D.lgs. 50/2016 (italian public contracts code)

Art. 67 (Contract award criteria,) Directive 2014/24/EU

 

The Italian legislation gives a wider illustration of the criteria for tender evaluation than the European Directive. However, Italian and European provisions offer not an exhaustive list, but an open catalogue integrated with additional parameters including also particular conditions of contract performance linked to qualities and characteristics of the tenderers.

 

2. FACTS

Bank of Italy (Banca d’Italia) issued an invitation to tender for “building and plant maintenance activities” (contract value over €46 million). The award is made to the economically most advantageous tender (maximum of 70 points to technical offer and maximum of 30 points to economical offer).

The appellant disputed the points award of technical offer, in particular the approach of the contracting authority to give preference to tenderers subjective conditions or qualities, namely (i) availability of specific technical-professional figures (33 points out of 70), (ii) certifications attesting to technical and production quality standards (7 points), (iii) the commitment to apply a specific national collective labor agreement (CCNL) to workers (12 points).

 

3. JUDGMENT

The judgment offers clarifications on how contracting authorities may exercise discretion in the choice of rewarding criteria to be applied to evaluation of tenders where these criteria respond not only to the need to procure goods and services, but also to the pursuit of social, environmental and, in general, sustainability objectives.

The Consiglio di Stato (Council of State, Italy) confirms that the contracting authority may also include particular contract performance conditions among the evaluation criteria. The choice of these criteria should be exercised in respect of three parameters: (i) be connected to the subject-matter of the contract; (ii) be indicated in the procurement documents; (iii) should not confer an unconditional choice to contracting authorities.

Regarding to the connection between award criteria and subject-matter of the public contract, the Judge point out that this connection can be interpreted extensively, because the criteria are linked to the subject-matter of the contract under any aspects and any stage of their circle of live. Therefore, it is also allowed to include factors which are not part of the content of the subject matter of the contract, but which are involved in the specific process of production or at a later stage of their life cycle.

The national court recalls that the condition of a link with the subject-matter of the contract excludes criteria and conditions relating to general corporate policy. However, should be allowed when the elements of the company’s general policy (on ethics, social responsibility, etc.) it’s regarding a specific process of production or provision of the purchased works, supplies or services.

Finally, the Court recognizes that the criteria must be identified by weighing both the specific interest of the administration and the general principles of proportionality, equal treatment, non-discrimination and competition. This means that the points awarded must be in accordance with the principle of proportionality, more precisely, must have such an impact on the overall score that it does not “disrupt the overall structure of the evaluation criteria“.