The case
The project for the Hospital Center and University Educational Center in Catania, located in the pavilions of the former Vittorio Emanuele hospital, has a basic tender value of over 19 million euros. This contract, under the responsibility of the University of Catania, was the subject of a contestation concerning the award criterion based on the “lowest price”. ANCE Sicilia has in fact reported the adoption of this criterion, claiming that it is in contrast with thearticle 108 of the new Contract Code, pursuant to Legislative Decree 36/2023.
ANCE Sicilia, in contesting the award criterion, argued that the use of the lowest price violates the principles of efficiency, effectiveness and economybeyond compromising the overall result of the contract. Following this report, the National Anti-Corruption Authority (ANAC) started an investigation proceeding, notified to the University of Catania on 13 June 2024.
The University of Catania has defended his choice of the lowest price criterion with a note, underlining that this criterion was appropriate to the nature of the contract. According to the University, the executive project had already been defined in detail and thelack of innovative features in the systems did not justify a different criterion.
Reference legislation and ANAC opinion
According to theart. 108 of the Legislative Decree. 36/2023for public procurement above the community threshold, the use of the criterion ofmost economically advantageous offerwith exceptions for standardized supplies or services or for low labor intensity services. Furthermore, works characterized by a significant technological content must be awarded according to best quality/price ratioa criterion that would have allowed not only an economic but also a qualitative evaluation.
ANAC assessed that the lowest price criterion applied by the University of Catania was not compliant with the provisions of the Contract Code, considering that the contract in question, including works classified as OG11 (technological systems) for a significant amount, necessarily required the adoption of the criterion of the most economically advantageous offer. Furthermore, ANAC highlighted that, for projects with these characteristics, the legislator imposes the best quality/price ratio for avoid potential critical issues such as excessive reductions that could compromise the quality of the work or safety conditions at work.
In line with the principles established by Legislative Decree 36/2023ANAC underlined the importance of additional criteria in addition to the economic one, which they should also include social and environmental aspectssuch as the promotion of gender equality and the environmental impact of the project. For example, theart. 108, paragraph 4, of the Code requires the valorization of social and environmental criteria in public procurement, and theart. 57, paragraph 2, imposes theintegration of the Minimum Environmental Criteria (CAM) in the tender documentation.
Furthermore, the “result principle” highlighting that the Legislator has thus codified the principles of good performance and the principles of efficiency, effectiveness and cost-effectiveness of administrative action, with a view to achieving “of the assignment of the contract and its execution with
maximum timeliness and the best possible relationship between quality and price”.
On 9 October 2024, ANAC therefore resolved that the use of the lowest price criterion in the tender procedure in question was in conflict with the Contract Code.
Implications for future procurement
This resolution has significant implications for future tenders in Italy, especially for contracting authorities operating in the context of technologically complex or high economic value projects.
Adopting the criterion of the most economically advantageous offer, in such cases, allows us to consider not only the cost, but also theoverall effectiveness of the offer.
This approach is effective for avoid discounts which, while promoting short-term savings, could lead to higher long-term costs, compromising the sustainability and quality of public works.
