If the first application rule in the context of submitting a technical offer to a public tender is the prohibition of mixing between elements of the technical offer and elements of the economic offer, this principle does not necessarily apply in absolute terms.
The rationale of the principle is to avoid that in the evaluation of the technical offers - to be carried out in a secret session and before the examination of the economic offer - the Selection Committee can be influenced by reasons of economic convenience of the offer, so as to opt for an offer from an economic operator even if, for technical reasons, it would deserve to be subordinated to another.
In this perspective, the prohibition is the implementation of the principles of impartiality and good performance of administrative action provided for by art. 97 of the Italian Constitution, and the principles of free competition and non-discrimination between competitors pursuant to art. 30 of the Italian Code of Public Contracts.
The aforementioned prohibition, however, as anticipated, must not be understood in an absolute sense, but relative, with reference to the concrete case, having to verify whether the disclosed knowledge of an element of the economic offer already in the context of that technique has the capacity, even if only potential, to influence the evaluation of the Selection Committee on the preference to be accorded to one over the other offer.
Therefore, single economic elements may be included in the technical offer that are made necessary in order to represent the construction solutions of the work or service object of the tender, provided that they are economic elements that are not part of the economic offer, such as prices at tender basis, official price lists, costs or market prices, or rather are isolated and completely marginal elements of the economic offer, and which do not in any way allow the overall economic offer to be reconstructed.
It follows that the economic operator cannot be excluded simply by the fact that economic data have been found in the documents making up its technical offer, without further verification of the ability to influence the decisions of the Selection Committee. Otherwise, the principle of secrecy of the economic offer would not be applied, but rather a new exclusion clause would be introduced in contrast with the mandatory principle of the causes of exclusion established by art. 83, paragraph 8, of the Italian Public Contracts Code (see sentence of the CONSIGLIO DI STATO no. 3725/2022 made public on May 11, 2022).
Avv. Alfredo Iadanza Lanzaro
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