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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.


Roberto Cursano is a counsel in Baker Mckenzie since 2007 in Rome, Italy office. His practice focus more in pharmaceutical and healthcare law matters and compliance, and assists in tender procedures, the negotiation of public contracts and litigation before administrative courts.


Riccardo Ovidi is an associate in Baker McKenzie's Rome office.