The principle of conservation of the offer
The Offers presented in the context of a public contract They are interpreted, like all acts relating to a negotiation, according to the rules provided for by the civil code on the interpretation of contracts.
Among these, relevant, for the theme we deal with, is the provisions of art. 1367, which identifies a principle said conservationon the basis of which the contract (and all negotiating documents) is always interpreted in the sense of allowing attribute to each clause a useful meaning to give you an effectinstead of making it free of effects (as happens in the case of discrepancy).
| Art. 1367 Civil Code |
| If in doubt, the contract or the individual clauses must be interpreted in the sense in which they can have some effects, instead of what according to which they would not have anyone |
On the other hand, the existence of a conservation principle also emerges from other provisions, such as art. 1419 of the Civil Code that saves the contract even if a single clause is affected by nullity.
| Art. 1419 Civil Code |
| The nullity of individual clauses of the contract does not matter the nullity of the entire contract, if the null clauses are replaced by right by mandatory rules. If it appears that the contractors would not have concluded the contract without those clauses, the nullity of the same imports the nullity of the entire contract. |
This is clear, as long as there is a doubt, an ambiguity: if the discrepancy is clear, The exclusion is inevitableas per example (limited as any example) that follows.
| Specifications | Offer> | Offer> |
| The economic operator must use n. 5 types of types per enroll not before 2020. | They will be used in the execution of the ambulance service registered in 2023. | They will be used in the execution of the ambulance service registered in 2018. |
| Reasons for the evaluation | The offer is saved even if it does not indicate the number of ambulances to be used, because the competitor undertakes by presenting the offer to compliance with the specifications | It is clear that the offer does not comply with the requirement of the year of enrollment. |
The Council of State, in the indicated sentence, states clearly: the incomplete data must be understood as compliant with the required by the entity.
| Cons. State n. 1875/2025 |
| The offer formulated … does not present any margin of ambiguity relating to the quantitative data, which must necessarily be understood in accordance with that requested by the contracting authority, in light of the hermeneutic criterion pursuant to art. 1367 cc and, that is, of the principle of conservation, given that an offer different from the specifications is, as a rule, inadmissible. |
And this also in application of the super-principles of the code, including that of the result, obstacle to formalisms without reality and concrete substance.
| Cons. State n. 1875/2025 |
| The compliance of the offer to the specifications, in the absence of an explicit contrary specification, is imposed by the principle of the result and the Favor Participationis, pursuant to art. 1 and 3 of Legislative Decree no. 36 of 2023 |
Conclusions
The drafting of a technical offer requires attention to the particular, careful analysis of the body’s needsof his expectations. It is a complex job, especially when you have to do it for technical services, where a consolidated experience is required. And it is a job that must be defended, because the discrepancies from the specifications (real or imaginary) are a classic method of aggression of the award. Aggression that the Council of State helps to avoid, underlining that it is not responsible for form: it is competed on the substance.
