If the economic offer is contained in the only envelope also containing the administrative documentation, this does not always involve the violation of the principle of secrecy of the economic offer.
Everything will depend on the type of tender chosen.
In fact, if the award of the tender took place through the criterion of the lowest price, as determined by a discount on the base amount of the tender (see Article 36 of Italian Legislative Decree no. 50/2016) , there will be no violation of the law by the economic operator.
Therefore, in the presence of this award criterion, there is no violation of the principle of separation of the economic offer from the technical one in the case described above, as it is not applicable in cases where the Contracting Authority is not called upon to evaluate the technical offer with the attribution of scores that could be influenced by prior knowledge of the content of the economic offer.
According to the substantive approach, the principle of the secrecy of the economic offer oversees the implementation of the principles of impartiality and good performance of administrative action (see Article 97 of the Constitution), sub-species of transparency and a level playing field of competitors, to ensure the smooth and free development of the process which ends with the judgment on the technical offer and the attribution of scores to the individual evaluation criteria.
The hermeneutic principle of secrecy therefore finds timely and exclusive application in the selection procedures in which the criterion of choice is that of the most economically advantageous offer, placing itself, in fact, as a safeguard against the need to prevent the technical evaluation of the offer by of the examining board is conditioned by knowledge of the most convenient economic proposal formulated by a participating company.
Therefore, if the tender is to be awarded according to the criterion of the lowest price, the automaticity of the evaluation of the offer excludes that the lack of effectiveness of the principle of secrecy could lead to prejudicial effects in relation to the objectivity and homogeneity of the activity carried out by the Commission. judging.
From this derives the decisive value of the fact that the automatism of the award correlated to the lowest price offer prevents the abstract and accidental knowledge of the economic offer presented by an operator from compromising the outcome of the tender procedure (cf. sentence of the TAR MOLISE - Campobasso n. 231/2022 made public on 23.06.2022).
Avv. Alfredo Iadanza Lanzaro
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