In its judgement of 26 September 2023, no. 8512, the Council of State, Sec. III, expresses its opinion on the legitimacy of the bonus-awarding criteria for improved offers.
As is well known, the bonus-awarding criteria are the requirements that bidders prove to possess (in addition to the award requirements) and for which an additional score is envisaged for the purpose of awarding the tender.
The new Public Procurement Code (Legislative Decree No. 36 of 2023), under Article 108, expressly provides for the possibility of a greater bonus score in the event that ‘in order to promote gender equality, the contracting stations shall provide in the calls for tenders, notices and invitations, for a greater score to be awarded to companies for the adoption of policies aimed at achieving gender equality proven by the possession of the gender equality certification referred to in Article 46-bis of the code of equal opportunities between men and women, referred to in Legislative Decree no. 198 of 11 April 2006‘. In all other cases, on the other hand, the administrating body has the right to provide for them in the public tendering procedures, so much so that case law is now firm in stating that: “the contracting authority must be granted vast discretionary powers in order to establish the criteria and parameters for the evaluation of the offer from a technical point of view, through the foreshadowing of additional or bonus scores for professional knowledge and experience that can be certified (also by private parties, provided they are qualified), where this is justified in relation to the purpose pursued by the start of the selective procedure” (See. Council of State sec. V, 18/08/2023, no. 7811).
The Council of State recently returned to the subject, clarifying the boundaries and limits of introducing such criteria.
In this perspective, by means of judgment no. 8512 of 26 September 2023, the Judges of Palazzo Spada, affirmed that the Administration – although bound to the application of the principle of favor partecipationis, which safeguards free competition in public procedures and prevents contracting authorities from introducing rules that restrict the possibility for economic operators to submit suitable bids – may well adopt tender rules which, in exercising its discretionary powers in the matter, may guarantee the pursuit of the objective to provide the goods or services that are the subject of the tender in compliance with the principles of proportionality, reasonableness and non-extraneousness with respect to the subject of the procedure.
Moreover, in this respect, it should be recalled that the reason for public tendering consists precisely in supplying the administration, by means of the most advantageous of the possible contracts, with the works, goods or services that it actually needs in the general interest, and not merely providing the undertakings concerned with an opportunity to be modulated on their organisational preferences. Consequently, the possibility of introducing bonus-awarding criteria in compliance with the aforementioned principles also corresponds to this rationale.
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