In general, non-EU companies have the right to participate in public tenders within the limits of the signing of certain binding agreements with the European Union (AAP - or agreement on public procurement stipulated in the framework of the Uruguay Round multilateral negotiations).
In the absence of such binding agreements, it is not excluded that non-EU companies may be admitted to participate in public tenders.
Such interpretation was made by the italian administrative judges, who, relating to a contract in the special transport sector, applied art. 137 of the Italian Public Contracts Code (Legislative Decree no. 50/2016 and subsequent amendments).
In this case, a non-EU company that is not a signatory of any agreement AAP was allowed to participate in the public tender for the supply of passenger transport vehicles, with the contracting authority having a mere right (and not an obligation) to exclude offers containing supplies of products coming for more than 50% from third countries.
Indeed, art. 137, paragraph 1, of the Italian Public Contracts Code establishes that << Without prejudice to the obligations assumed towards third countries, this article applies to offers containing products originating in third countries with which the European Union has not concluded, in a multilateral or bilateral context, an agreement that guarantees comparable and effective access by European companies to the markets of such third countries >>.
Again art. 137, paragraph 2, prescribes that << Any offer presented for the award of a supply contract can be rejected if the part of the products originating in third countries, pursuant to regulation (EU) no. 952/2013 of the European Parliament and of the Council, exceeds 50 percent of the total value of the products that make up the offer. In case of non-rejection of the offer pursuant to this paragraph, the contracting authority duly justifies the reasons for the choice and transmits the relative documentation to the Authority […] >>.
By applying this regulatory framework to the present case - since it is an offer of products originating from third countries over 50% of the total value - the contracting authority may at its discretion admit or exclude the offers presented.
Should the offer be admitted, the contracting authority will be required to provide an adequate motivation for the choice, with transmission of the relevant documentation to ANAC Authority (see sentence of the Sardinian Regional Administrative Court no. 737/2021 made public on 02.11.2021).
Avv. Alfredo Iadanza Lanzaro
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