In the context of public procurement procedures, it is sometimes important to carefully examine the documents prepared by the Contracting Authority, and in the light of some ambiguous provisions or clauses in the tender notice or tender specifications, it is important to be very familiar with the criteria and principles of law that are necessary for the applicants to fulfill their own obligations relating to their participation in the tenders.
Well, with the issue thus raised, reference is made to the well-established case-law, according to which for purposes of interpreting the lex specialis of the tender procedure, the rules regarding the interpretation of contracts shall generally apply (see Council of State, Sec. V, May 30, 2022, no. 4365; Sec. V, Oct. 1, 2021, no. 6598).
In this regard, although Article 1362, para. 1 of the Civil Code necessitates searching for the “common intention of the parties” without limiting oneself to the words' literal meaning, case law however has later clarified that the literal meaning always constitutes the overriding criterion of the interpretative operation which shall be backed up by the other criteria, including, in particular, the logical-systematic criterion set forth in Article 1363 of the Civil Code, if the text of the agreement is clear but inconsistent with other indications revealing a different intention of the contracting parties (see Court of Cassation, civ., sec. 1, July 2, 2020, no. 13595; sec. 3, July 26, 2019, no. 20294). Moreover, when the literal criterion is sufficient to define the result that the parties intended to achieve, the hermeneutic operation must be considered usefully, as much as definitively, concluded (see Court of Cassation. civ, sect. 3, March 11, 2014, no. 5595). And this is in order to ensure that competitive procedures are carried out according to objective principles of certainty and transparency (i.e., verifiability), which require that the clauses of the tender's lex specialis be considered of strict interpretation. These principles are in line with the general principle according to which it must be: “privileged, in order to protect the companies' legitimate expectations, the literal interpretation of the text of the lex specialis, from which a shift is permitted only in the presence of its objective uncertainty, given that it is necessary to avoid that the hermeneutic procedure leads to the integration of the tender rules by revealing meanings of the notice that cannot be clearly inferred from its textual reading. Moreover, the interpretation of the “lex specialis” is subject, as for all administrative acts, to the same rules established for contracts by Articles 1362 et seq., c.c., among which the one related to literal interpretation which takes preeminent character.” (ex plurimis, Council of State, III, March 6, 2019, no. 1547).
Together with the classical criteria of interpretation, administrative case law declared an autonomous interpretative criterion (euro-unitary derivation) of the lex specialis of tender procedures: the criterion of favor participationis, whereby given several possible interpretations of a clause found in a tender notice or specification, the hermeneutic choice that allows the widest participation of applicants, should always be preferred (see Council of State, sec. III, March 9, 2022, no. 1698; V, August 23, 2019, no. 5828). This principle has been declined in other decisions because of the need to apply the criteria of proportionality and reasonableness, with the aim of excluding excessively restrictive and anticompetitive interpretative solutions, so that, in case of interpretative doubts, the solution that allows the widest participation in the tender shall always be preferred (in this sense see Council of State, sec. V, February 17, 2022, no. 1186; V, March 25, 2020, no. 2090).
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
