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In brief

In the context of an emergency negotiated procedure for the awarding of framework agreements for the supply of ecotomographs intended for the COVID-19 health emergency, the Council of State reiterated the obligation for the bidder to specify in its financial offer the cost of labor highlighting that the failure to comply with this requirement results in the exclusion from the tender pursuant to Sections 95, paragraph 10, and 83, paragraph 9, of the Code of Public Contracts.


What’s New 

The above judgment has also been confirmed by the recent decisions of the EU Court of Justice stating that the principles of legal certainty, equal treatment and transparency – provided for by Directive 2014/24/EU on public procurement – must be interpreted as meaning that the failure to specify labor costs in the financial offer results in the exclusion from tender with no possibility of supplementing or amending the offer even where the obligation to list those costs separately is not provided for by the tender documentation.

In this regard, the administrative judge stressed however that in case the tender documentation makes reference to the provisions of the Code of Public Contracts but, at the same time, provides for mandatory declaratory forms in which there is no space for indicating the costs of labor, the bidder may request the competent judge to verify the material impossibility of listing said costs and to grant the possibility to regularize its offer.

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.

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