Council of State, Section III, 13 March 2025, n. 2066, Italy
Article(s) in Directive 2014/24/EU: Art. 18, Art. 42
Topic: Principle of equivalence
Member State: IT
Court/rev. board: Council of State
1. IMPLEMENTATION / RELEVANT NATIONAL LEGISLATION
This judgment is significant in that it addresses the principle of equivalence, through which, in addition to the Italian constitutional principles of impartiality, good governance and freedom of economic initiative[1], the favor participationis is also implemented as a corollary of the EU principle of competition[2], allowing the Public Administration to pursue the public interest[3]. The possibility of admitting products with technical specifications equivalent to those required for comparison is a legitimate exercise of technical discretion by the contracting authority when the performance of the product offered, although different from the technical specifications indicated by the contracting authority, is nevertheless substantial, so that the specifications indicated in the tender are in practice satisfied in any case. This conclusion is in line with articles 18 and 42, section 2 of Directive 2014/24/EU that codify the protection of competition, equal treatment and transparency.
[1] In this regard, see articles 1 and 3 of the new Italian Code of public contracts (legislative decree 36/2023): one of the innovations of the Code is to have codify specific public contracts principles that summarize and combine the administrative pillars of the Italian Constitution and of the European discipline
[2] The expansion of the pool of competitors by virtue of the principle of equivalence and, more generally, of competition in the field of European public procurement is supported by consistent national case law. See Council of State, Section III, 18 September 2019, No. 6212, in which is explained that for the purposes of participation in public tenders, the principle of equivalence permeates the entire public procurement regime, it applies “regardless of any express reference in the tender documents or by the competitors” (see point 24 of the aforementioned decision of the Council of State). This criterion responds to the more general principle of favor partecipationis (i.e., broadening the pool of competitors), thus constituting an expression of maximum competition in the public procurement sector.
[3] With regards to the cited principles, it should be taken into consideration Case C-14/17, in which, even in specific economic sectors, different from the one of judgment under comment, technical specifications and equivalent products are treated and considered in a way in which they cannot restrict the competition in public procurement and the characteristics of the European market.
2. FACTS
The Lombardy Regional Agency for Innovation and Procurement (ARIA) has launched a multi-lot public tender procedure for the supply of infusion pumps and related services. Three bidders participated in Lot 2, which concerned the supply of multi-channel volumetric infusion pumps and flow meters: Icu Medical Europe, the consortium formed by Consorzio Atesmedica.Com and Gada Italia, and, finally, Becton Dickinson Italia. The latter was initially awarded the contract.
Icu Medical Europe challenged the exclusion of its bid from the aforementioned lot in front of the Milan Regional Administrative Court, also on additional grounds, as the contracting authority considered that the volumetric infusion pumps offered by the applicant did not meet the requirements.
Becton Dickinson, on the other hand, challenged, in a separate appeal, the ARIA note of 29 February 2024, which, after the award, ordered its exclusion on the grounds that the infusion speed did not comply with the requirements of the procurement documents and argued that Atesmedica consortium should have been excluded as well. The Regional Administrative Court rejected both appeals. Becton then appealed against the parts of the aforementioned judgment concerning its exclusion from lot 2 and the failure to exclude the consortium headed by Atesmedica.
3. JUDGMENT
The appeal was dismissed on technical grounds. One of the main points of the judgment is the content of the contract documents. It required as essential requirements, under penalty of exclusion: “Infusion speed independently adjustable on each channel – Infusion speed adjustable from at least 0.1 to 999 ml/h”. Becton Dickinson was admitted conditionally, considering the notice of the firm that made the pumps to not to utilise them for speed higher than 800ml/h in clinical use. This is the reason of the exclusion from Lot 2.
In its ruling, the TAR of Milan specified that the offer made by Becton Dickinson did not meet the minimum required standards while, appealing its judgment, the undertaking affirmed that the infusion speed has to be considered not on each channel but globally. This thesis has been rejected by the Council of State, since Chart of the Products included in the tender documents required an adjustable, independent speed infusion of at least 0.1 to 999 ml/h. In addition, the contracting authority clarified in a specific act the literal wording of the lex specialis.
The appellant also criticised the decision of the TAR to not exclude the Atesmedica Consortium, incorrectly applying the principle of equivalence. Its furniture consists of two pumps separated from each other by more than one channel. As a result, the number of the offered pumps offered would be the double of the number required by the lot.
As explained by the TAR, the need of the contracting authority would be met also with the solution proposed by Atesmedica and the opposite conclusion would have been supported by proof by the appellant. In admitting the offer of Atesmedica to the tender, the contracting authority applied the principle of equivalence. It means the possibility to compare products with equivalent technical specifications. As remarked by the Council of State,
‘The issue must be framed within EU principles that allow products with technical specifications equivalent to those required to be included in the comparison for the purpose of selecting the best bid. It complies, on the one hand, with the constitutional principles of impartiality, good governance and freedom of economic initiative and, on the other hand, the EU principle of competition, which sees as a corollary the favor participationis in public tenders, through the legitimate exercise of technical discretion by the Administration in accordance with criteria of reasonableness and proportionality. Equivalence therefore presupposes that the performance of the product offered, even if it differs from the technical specifications indicated by the contracting authority, is substantially in conformity with those technical specifications, insofar as they are substantially satisfied’[1]
Coherently with other statements, such as Council of State, Section III, 7 July 2021, No. 5169[2], where the conditions are met, the contracting authority must apply the principle of equivalence on the basis of substantive and functional criteria. In so doing, the specifications indicated in the tender notice are satisfied in a substantial way.
[1] See Council of State, section. III, 13/03/2025, no. 2066, point 11.4
[2] More in detail, the most relevant headnote of the case states that: ‘The principle of equivalence is the basis of the entire discipline of public evidence and consists in the possibility of admitting, following evaluation by the contracting authority, products with technical specifications equivalent to those required, thus responding to the principle of favor partecipationis and constituting an expression of the legitimate exercise of technical discretion by the Administration’, Council of State, Section. III, 07/07/2021, no. 5169, editorial summary of One Legale Wolters Kluwer, 2021
