Defect of incompetence of the members of the tender commission



Pursuant to art. 77, paragraph 1, of Legislative Decree no. 50/2016 (Public Contracts Code), << In the procedures for the award of contracts or concessions, limited to the cases of awarding with the criterion of the most economically advantageous offer, the evaluation of the offers from a technical and economic is entrusted to a commission of selection, composed of experts in the specific sector to which the subject of the contract refers >>.


Well, the << specific sector >> referred to in art. 77 mentioned above, has been interpreted in the sense that the competence and experience required of the Tender Commissioners must refer to homogeneous thematic areas, and not also to the single and specific activities covered by the contract, that is, it is not required a perfect correspondence between the competence of the members of the Commission, also considered cumulatively, and the various material areas that contribute to the integration of the overall object of the contract.


In addition, the need to refer the scope of specific competences not to each individual component, but to the Commission as a whole, must be considered.

It follows that the legitimate composition of the Tender Commission presupposes the prevalent, albeit not exclusive, presence of expert members of the sector covered by the contract, so that the requirement of the competence of the collegiate body can be considered concretely satisfied when two of its three members are bearers of a specific competence in the sector to which the single contract refers, and the third member in any case boasts a general technical competence in the field of public tenders.


It is undisputed to argue that the presence of members with different professional experiences, both of a managerial and administrative nature and of a technical nature, responds, in a complementary relationship, to the evaluation needs imposed by the object of the tender, so that it is in relation to the specific tender context that the requirement of the professionalism of the Commissioners should be appreciated.


Despite the existence of these general principles, it is noted that in the presence of three members of the Commission, who, despite exhibiting a more than varied range of professional experiences such as to make them appreciate their competence in the public procurement sector, the Administrative Judges may believe that the However, the same members do not possess the professionalism required so that the Commission can be considered formed mainly by competent subjects in the << specific sector >> object of the Tender (see sentence of the TAR LAZIO - Rome n. 5107/2022 made public on 27.04. 2022).

Avv. Alfredo Iadanza Lanzaro


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