The Principle of Equivalence in Public Tenders:

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THE INTERESTED PARTY HAS THE BURDEN TO PROVE IT AND THE CONTRACTING AUTHORITY HAS THE OBLIGATION TO EVALUATE IT.

The Council of State, Section III, with its judgement No. 65 of 7 January 2022, returned once again on the subject and has clarified some important points regarding the application prerequisites and the binding effects on contracting authorities.

The “principle of equivalence” (of EU origin under Art. 42 of Directive 2014/24/EU) was implemented by the legislator in the Code of Contracts (Legislative Decree No. 50/2016) in Article 68 paragraphs 1 and 4, with which it states that “characteristics required for public works, services and supplies” are defined by the contracting authority by means of the identification of “technical specifications” included in the tender documents (Art. 68, paragraph 1), in compliance with the pro-competitive fee that guarantees in any case the “equal access of economic operators to the award procedure” without involving “directly or indirectly unjustified obstacles to opening public procurement to competition” (Art. 68, paragraph 4) or generating artificial or discriminatory restrictions to access  the market for the purpose of undue benefit or disadvantage to certain economic operators”. In other terms, it is established that the contracting authority may not exclude an offer  because it does not comply with the technical specifications it had referred to, if the product offered is not “aliud pro alio“, since a competitor wishing to present a product (or service) equivalent to the one requested encounters the sole limitation of the “dissimilarity of the item with respect to the one described by the lex specialis”, constituting a hypothesis of “aliud pro alio not remediable” (Council of State, Sect. V, 25 July 2019, no. 5258).

Therefore in this respect,

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