Uniqueness of the offer in participation in public tenders
According to Article 32, paragraph 4, of Italian Legislative Decree no. 50/2016 (Public Contracts Code), << Each competitor may not submit more than one offer >>.
The Milanese Administrative Judge, starting from this regulatory provision, was able to address the issue relating to the non-uniqueness of the offer, which occurs when an economic operator has submitted a technical offer with two products with different characteristics.
The proposal of two products - instead of one - would allow the economic operator to illegally increase the chances of awarding and minimize the risk of failure, unlike other competitors who have relied on a single supply proposal.
All of this is clearly not allowed by the aforementioned legislation, since the principle of uniqueness of the offer exists which has required economic operators to submit a single technical proposal and a single economic proposal, in order to give the offer a certain and unambiguous content.
This principle is intended to safeguard - on the one hand - the good performance, economy and certainty of the administrative action, in order to avoid that the contracting authority is forced to evaluate multiple offers from the same economic operator, which are incompatible with each other, and that therefore it is hindered in the activity of identifying the best offer, and - on the other hand - to protect the level playing field of competitors, since the plurality of proposals would give the economic operator greater possibilities to obtain the award, or in any case to reduce the risk of being placed in a poorer position.
Admitting, therefore, a non-univocal technical offer would be to the detriment of loyal competitors who have submitted a single and univocal proposal corresponding to the service covered by the contract, to which they would have entrusted their unique and exclusive chance of awarding.
Here then is that the principle of uniqueness of the offer aims to guarantee the genuineness of the competitive comparison, an unattainable objective if two non-homogeneous products are compared.
Therefore, the presentation of a single offer capable of obtaining the award is the result of a processing activity in which each company faces the risk of a technical choice, which the contracting authority leaves to the companies in the sector, but which involves an objective limitation of the chances of victory.
Among other things, the fact that the price of the two products offered is the same is of no importance, since the economic element is not the only one capable of affecting the competitive comparison in a tender that enhances both the technical and the economic one (see sentence of the TAR LOMBARDIA - Milano n. 836/2021 made public on March 30, 2021).
Avv. Alfredo Iadanza Lanzaro
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