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In brief

With Judgment No. 5063 of 17 August 2020, in line with the most recent case law, the Council of State confirmed that the equivalence criterion applies in the award of tenders for the supply of medical devices. According to said criterion, the assessment of bids with respect to the relevant technical specifications must be grounded on criteria of substantial conformity of the offered technical solutions and not to formalistic findings.


In particular, the Council of State established that a product offered can be considered equivalent where, although lacking certain requirements set out in the technical specifications, it is capable of satisfying the interest pursued by the awarding authority by ensuring the same result envisaged by the tender documentation.

In this respect, the administrative judge clarified that the equivalence criterion, whose purpose is to ensure compliance with the principle of effective competition established at the EU level, cannot be applied in a restrictive or formalistic way; rather, it must be favoured as it is designed to meet the primary need to ensure maximum competition in the field of public contracts.

Lastly, the Council of State stressed that the assessment of the technical equivalence of bids constitutes a legitimate exercise of technical discretion by the awarding authority and that, where such an assessment is reliable and free from unreasonableness and illogicalness, it cannot be replaced by a different technical assessment of the party’s consultants or the judge.

Author

Roberto Cursano has been a lawyer in Baker McKenzie since September 2007. He focuses on healthcare law and compliance, and assists in tender procedures, the negotiation of public contracts and litigation before administrative courts. Mr. Cursano is a former administrative officer in the Italian Ministry of Health and helps clients work closely with the Italian Public Administration. He is admitted to the bar before the Italian Supreme Court and the Council of State. As well as training and tutoring in the master’s degree program on clinical trials of pharmaceutical products at the University of Rome Sapienza, Mr. Cursano regularly publishes articles and scientific contributions. He also frequently hosts and participates in seminars and presentations on pharmaceutical and administrative law matters.

Author

Riccardo Ovidi is an Associate in Baker McKenzie Rome office.