Decision n. 7870, 21st August 2023, Council of State, sec. V, Italy
Article(s) in Directive 2014/24/EU: Art. 60 – Means of proof
Topic: Contract notice – Failure by the contracting authority to include elements provided for as necessary and mandatory by the law – Heterogeneous integration of the contract
Member State: IT
Court/rev. board: Council of State
1. IMPLEMENTATION / RELEVANT NATIONAL LEGISLATION
2. FACTS
The main question of this case concerned the consequence of the lack of the inclusion, in the contract documents, of a requirement that is, however, enshrined in the legal order (or lex generalis). The issue concerned the meaning of “equivalency” of degrees obtained abroad to Italian degrees, for which the national law specifically foresees the possession of a certificate issued by the Consulate.
The Ministry of Justice had launched a tender aimed at awarding the service of “digitalization of the judicial hybrid and paper files” of certain courts, to be awarded on the lowest price criterion. The contract documents required the participation of a “unique manager” and “coordinator” of the service, holding a Master’s degree in technical-scientific, economic-managerial disciplines “or equivalent”. The contracting authority had indicated that, with regard to the meaning of equivalent degrees, it would have applied the specific legislation defining the equivalence of academic qualifications – without mentioning any specific requirements in the contract documents.
The appellant had won the tender, but was consequently subjected to a procedure for rectification on the grounds that it had not been able to present a certificate of equivalency proving that the qualification obtained by its expert abroad was equivalent to an Italian degree. The appellant’s expert indeed did retain a relevant degree and could prove to hold it (as requested in the technical specifications), but – differently from what is required under Italian law – such degree was not accompanied by a certificate of equivalency to be issued by the Consulate. The appellant was consequently excluded: even if the expert was in possession of a degree, they failed to require a certificate of equivalency for it and were thus unable to meet the requirements of the contract documents as integrated by the national law.
3. JUDGMENT
The appellant contested the exclusion measure in front of the Regional Administrative Tribunal, on the grounds that the contract documents did not explicitly foresee that the expert should have provided a certification to prove that their qualification was equivalent to an Italian Master’s degree. The Tribunal dismissed the appeal on the ground that, according to Italian law n. 148/2002, for a degree awarded abroad to be recognized as equivalent to an Italian degree, it would in any case be necessary to obtain such a certificate of equivalency.
The Council of State acknowledged that the requirement was not explicitly set out in the contract documents, but clarified that the contract documents were to be understood in the perspective of their “eterointegrazione” (integration of the contract). Such integration is to be considered in the presence of an objective gap in relation to the tender rules, or where the contracting authority has failed to include in the contract documents elements that are foreseen as necessary and mandatory by the legal system as a whole. The Council of State recalled that the notice, constituting part of the contract documents of the procedure, “must be supplemented by a binding provision of the legal system”. The Council of State thus dismissed the appeal.
