Decision n. 16, 14th December 2022, Council of State, Plenary meeting, Italy
Article(s) in Directive 2014/24/EU: Art. 81
Topic: Public contracts and obligations of the public administration; Evaluation of the technical offers; Award of scores by the committee; Pairwise confrontation
Member State: IT
Court/rev. board: Council of State
1. IMPLEMENTATION / RELEVANT NATIONAL LEGISLATION
Article 95 of Legislative Decree No. 50 of 2016, on ‘contract award criteria’.
2. FACTS
The appellant (Linde Medicale s.r.l.) challenged the award (lots 1, 2 and 4) of the “bridging tender”, an open procedure, issued by the Azienda Sanitaria Locale Roma 1 (ASL Roma 1) for the award, by means of a framework agreement, of the home mechanical ventilator service.
The applicant complained, before the Regional Administrative Tribunal of Lazio (TAR), defects common to all three lots, claiming, amongst all, (a) the unlawfulness of the evaluation operations carried out by the tender committee in alleged breach of the regulatory provisions and of the tender lex specialis on the so-called “pairwise confrontation” method, together with the failure to state reasons in relation to the vagueness of the criteria for awarding the technical points provided for in the tender specifications. The Plenary Assembly received the following questions: (1) whether, in the context of the assessment of the qualitative elements of the technical tender, the commissioners may compare notes with each other and freely agree on the score to be awarded (without doing so individually), or, on the contrary, that constitutes an introduction of the principle of collegiality into assessments which shall be of an exclusively individual nature, and (2) whether the evaluations expressed by the individual commissioners in the form of preference or of the non-comparative numerical coefficient, be subject of specific minutes, or may they be considered to be absorbed by the final collegial decision in the absence of a provision requiring them to be record autonomously.
3. JUDGMENT
In examining the first ground, (a), the TAR held that the complaints were unfounded, because it could not be inferred from the circumstance put forward by the applicant that in the tender minutes it was “the commission”, rather than the individual commissioners, that the evaluation was collegial, instead of, as foreseen, individual – made by the commissioners. The TAR, basing its reasoning on the administrative jurisprudence[1], stated that, in the absence of an express obligation to specifically record the minutes imposed by the tender specifications, the appreciations of the commissioners, even when the “pairwise comparison” method is adopted, are “absorbed” in the final collegial decision, consisting of a synthesis of the comparison and the composition of the individual judgments. The separate enunciation of the marks awarded by the individual commissioners assumes the value of an internal formality relating to the work of the examining board whose assessments, for the purposes of the minutes and external publicity, are sufficiently documented with the sole attribution of the overall final mark. As for the fact that the commissioners’ assessments were equal, the TAR stated that it would be illogical to maintain that only a differentiated assessment could be considered “normal”, if only because that would mean limiting the discretion of the individual commissioners. Therefore, the tribunal, in line with the previous administrative jurisprudence[2], ruled that the absence of any differentiation between the marks awarded by the various commissioners does not constitute “a sure sign of influence, since it could also in theory be justified by a concordance of the assessments made within a perfect panel”.
The Council of State, in its judgment, firmed the two steps to be followed in the “pairwise confrontation” method: a) the first, in which each individual commissioner proceeds to evaluate the competitors using the “pairwise comparison” method, and b) the second stage, in which the commission assigns the “preliminary coefficient” in order to determine the scope to be attributed to the operators in a proportional manner according to the points provided by each criterion. The Council of State also recalled that the evaluation process is not regulated by the current Code of Public Contracts (Legislative Decree n. 50 from 2016), following that, depending on the provisions in force, the contracting authority may determine, in the contract notice or in the tender specifications, the criterion for the attribution of scores for criteria of a qualitative nature (in compliance with the principles of proportionality, transparency and rationality) and the manner in which they are to be assigned. In the application practice, two methods have been the following: the discretionary attribution of a coefficient, and the “pairwise comparison” between the bids submitted, by each commissioner. As for the “pairwise comparison”, the Council of State stated that it is impossible that the individuality of the preferences expressed by the individual commissioner to a single tender with respect to all the others can be repeated indefinitely with the assignment of the same scores for each pair with reference to all the sub-criteria contemplated by the tender law by the other commissioners. It noted that the methodology in question tends towards a comparative graduation of the various bidders’ proposal through the attribution of numerical coefficients in the context of repeated “two-way comparisons”. The Council eventually shared the order of referral’s view, when it affirmed the admissibility of discussion and comparison, insofar as they have an enriching function, capable of bringing different skills and professionalism into dialectic relation, being able to reach such comparison to focus on the overall goodness of the individual options.
The Council stated the following: (a) tender commissioners, when assessing the qualitative elements of the technical tender, may compare notes with each other on those elements before scoring the tenders individually provided that such comparison does not lend itself to the introduction of the principle of collegiality; (b) referring to the “pairwise confrontation” method, that the assignment of scores that are all or largely identical cancels the individuality of the evaluations which, even after the collegial evaluation, must, in an initial phase, maintain a distinguishable preferential autonomy in the comparison between the individual offer and the others; (c) the evaluations of individual commissioners, in the form of non-comparative numerical coefficient, may be considered to be absorbed in the final collegial decision, while for the pairwise confrontation, the manifestation of preference is and must be in an individual phase, and as such individually expressed and resulting from the minutes.
All in all, as for the award of scores by the committee, in public procurement law, tender commissioners entrusted with the task of expressing a preference or a numerical coefficient, when evaluating the qualitative elements of the technical offer, may compare notes with each other on these elements before individually awarding marks to the offers, as long as this comparison does not lend itself to a surreptitious introduction of the principle of collegiality, with the formulation of scores pre-established ex ante, when such evaluations must, in the light of the regulatory framework in force, be primarily of an exclusively individual nature.
As for the pairwise confrontation, the assignment of all or largely identical and non-differentiated scores by all commissioners nullifies the individuality of the evaluation. The evaluation shall instead, also after the collegial evaluation, in a first phase, maintain a distinguishable preferential autonomy in the comparison with the single offer and the others, so as to guarantee the assignment of coefficients that are not merely repetitive and the very functioning of the pairwise comparison.
The evaluations expressed by the individual commissioners, in the form of non-comparable numerical coefficient, can be considered as absorbed in the final collegial decision, in the absence of a provision requiring them to be independently recorded in the minutes, whereas for the pairwise comparison, the manifestation of preference is and shall be first of all be individually expressed, and as such, recorded in the minutes.
MAIN LEGAL ISSUE: The decision of the jury shall be taken by each member of the jury separately and not as a common decision, in the sense that each member of the jury shall express his vote and the sum of votes shall be made. However, it is not necessary to record in the minutes each single vote, but it is sufficient to record the final vote.
[1] Council of State, section V, 14 February 2018, n. 952, recalling Council of State, section III, 13 October 2017, n. 4777 and Council of State, section V, 8 September 2015, n. 4209, ad Council of State, section IV, 16 February 2012, n. 810.
[2] Council of State, secton V, 24 March 2014, n. 1428, and Council of State, section V, 11 August 2017, n. 3994.
