In participating in public tenders, it applies the principle laid down by art. 83, paragraph 9, of Italian Legislative Decree no. 50 of 2016 (Code of Public Contracts), according to which there the economic offer cannot be changed.
The only admissible exception to this fundamental principle is the hypothesis in which the economic operator has incurred a particular type of error in the formulation of the offer, especially with regard to the economic component of it, in which the same can be corrected ex officio by the Administration or Contracting Commission, only where it is easily recognizable on the basis of a simple arithmetic calculation, and does not require in-depth analysis or activities of interpretation and reconstruction of the bidder's will.
In detail, by virtue of the principles of conservation of legal acts and maximum participation, the change of the offer must be permitted in the event of a material error that is easily recognizable through “direct and univocal” elements, such as to constitute a material or writing error that can be amended by Commission, but not even in the case in which it is necessary to draw on sources of knowledge unrelated to the offer itself or to inadmissible supplementary declarations of the bidder, since the contracting commissions are not allowed to modify one of the components of the offer with replacement, even if only partial, of the will of the bidder.
Starting from this interpretation, in a recent ruling, the TAR Marche rejected the appeal brought against the exclusion of the tender by mistake in the formulation of the offer, as it was not autonomously remediable by the Contracting Authority, and therefore the reparametration of the the applicant's offer violated the principle of unchangeability of the economic offer.
On the other hand, when only the bidder would have been entitled to carry out an “authentic interpretation” necessary to clarify the error, such a clarifying intervention by the bidder, posthumous to the opening of the economic offers, would have impacted with the principles of unchangeability of the offer and par condicio competitorum, resulting therefore completely inadmissible (see sentence of the TAR MARCHE - Ancona n. 238/2022 made public on April 11, 2022).
Avv. Alfredo Iadanza Lanzaro
The content of this article does not constitute legal advice, but has an informative function. For tailor made legal advice, contact the firm by e-mail to: info@dongpartners.eu or by phone +39 06 916505710. © Dong & Partners International Law Firm, All rights reserved.