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In brief

With judgement No. 6345 of October 20, 2020, the Council of State ruled on the lawfulness of a tender procedure for the supply of medical devices and, in particular, on the assessment made by the competent contracting authority that, after having reviewed the technical documentation submitted by the successful bidder, considered the products offered by the latter to be fully equivalent to those requested.


In this regards, the Council of State emphasized that the principle of equivalence applies in tender procedures, since the possibility of comparing products having technical characteristics equivalent to those required for the selection of the best offer is the expression, on one hand, of the constitutional principles of impartiality, sound administration and freedom of economic initiative and, on the other hand, of the principle of competition, the corollary of which is the favor partecipationis in public tenders through a legitimate exercise of technical discretion by the contracting authority.

The Council of State also considered that, in the case under scrutiny, the contracting authority legitimately used its discretionary power in considering, with broad motivation, that the bidder proved the equivalence of its product, as it possessed characteristics that made it usable according to the needs underlying the technical prescriptions of the tender specifications.

Author

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.

Author

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

Author

Irene Carlet is a Law Clerk/Intern in Baker McKenzie's Rome office.