European Union: The Principle Of Equivalence In Public Tenders: The Interested Party Has The Burden To Prove It And The Contracting Authority Has The Obligation To Evaluate It.

The Council of State, Section III, with its judgement No. 65 of 7 January 2022, returned once again on the subject and has clarified some important points regarding the application prerequisites and the binding effects on contracting authorities.

The "principle of equivalence" (of EU origin under Art. 42 of Directive 2014/24/EU) was implemented by the legislator in the Code of Contracts (Legislative Decree No. 50/2016) in Article 68 paragraphs 1 and 4, with which it states that "characteristics required for public works, services and supplies" are defined by the contracting authority by means of the identification of "technical specifications" included in the tender documents (Art. 68, paragraph 1), in compliance with the pro-competitive fee that guarantees in any case the "equal access of economic operators to the award procedure" without involving "directly or indirectly unjustified obstacles to opening public procurement to competition" (Art. 68, paragraph 4) or generating artificial or discriminatory restrictions to access the market for the purpose of undue benefit or disadvantage to certain economic operators". In other terms, it is established that the contracting authority may not exclude an offer because it does not comply with the technical specifications it had referred to, if the product offered is not "aliud pro alio", since a competitor wishing to present a product (or service) equivalent to the one requested encounters the sole limitation of the "dissimilarity of the item with respect to the one described by the lex specialis", constituting a hypothesis of "aliud pro alio not remediable" (Council of State, Sect. V, 25 July 2019, no. 5258).

Therefore in this respect, the aforesaid principle is aimed at avoiding an unreasonable limitation of the competitive comparison between economic operators, to the extent that administrative jurisprudence has repeatedly reiterated how the principle of equivalence permeates the entire discipline of public evidence, given that the possibility of admitting products to the comparison having technical specifications equivalent to those required, for the purpose of selecting the best offer, equates to, on the one hand, a constitutional principle of impartiality and good performance and freedom of economic initiative and, on the other, a Euro-unitary principle of competition. Such principles are seen as a consequence of the favor partecipationis in public tenders, by means of a legitimate exercise of technical discretion by the administration according to criteria of reasonableness and proportionality. With the principle of equivalence, it is possible to admit tenders whose subject matter substantially corresponds to the one requested and yet formally lacks the prescribed specification (among others: Council of State, Sect. IV, 7 June 2021, no. 4353).

The Council of State, with its judgement No. 65 of 7 January 2022, has clarified the application prerequisites and the binding effects on contracting authorities.

First of all, it was reiterated that the lex specialis shall expressly provide for the applicability of the principle in question, and once the equivalence of the product offered to that indicated in the tender law has been established in general terms, it is up to the interested party to prove such equivalence, while it is the obligation of the contracting authority to evaluate the actual existence of the equivalence adopted by the competitor. Nonetheless, it has been specified that when the tender documentation requires products commonly available on the market and commonly used, when accompanied by a technical data sheet clearly explaining characteristics and qualities, the tender committee may autonomously evaluate whether, despite the dissimilarity to what is required by the tender law, the item offered may nevertheless be considered equivalent. In other terms, according to the Council of State, the type of the item envisaged in the tender procedure must be assessed concretely according to its actual complexity.

Secondly, the judgment reiterates a further principle concerning the significance of the report of the court -appointed technical consultant in administrative proceedings. In this perspective, it should be noted that the evaluations expressed by the appointed consultants are not binding for the judge, who may legitimately disregard them by means of a critical evaluation that is, however, based on the results of the proceedings and is adequately and logically motivated.

The Council of State reiterates the principle according to which the judge is peritus peritorum, however, if the adjudicating body decides to deviate from the findings of the appointed experts, it must in particular, indicate the elements it used to deem unacceptable the arguments on which the verifier (or consultant) based himself, i.e. the evidence, the evaluation criteria and the logical-legal arguments to reach a decision that differs from the opinion of said consultant.

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