Administrative, Public Contracts and Public Administration Obligations, Service Procurement, Council of State, Section V, Order no. 10530 of 05 December 2023

Public contracts and public administration obligations – Service procurement – Standardized and labor-intensive characteristics – Lowest price award criterion – Prohibition

Prohibition on the provision of the criterion for awarding the lowest price and types of service contracts

It is referred to the EU Court of Justice, pursuant to art. 267 TFEU, the following preliminary question: “whether the principles of freedom of establishment and freedom to provide services, referred to in articles. 49 and 56 of the Treaty on the Functioning of the European Union, as well as the Euro-unitary principle of proportionality and art. 67, paragraph 2, of Directive 2014/24/EU preclude the application of national legislation on public procurement, such as the Italian one contained in art. 95, paragraphs 3, letter a), and 4, letter b), of the legislative decree of 18 April 2016 n. 50, as well as in art. 50, paragraph 1, of the same legislative decree, as well as deriving from the principle of law enunciated by the Plenary Meeting of the Council of State in sentence 21 May 2019, n. 8, according to which, in the case of contracts having as their object services with standardized characteristics and at the same time high labor intensity, the contracting authority is prohibited from foreseeing, as an award criterion, the lowest price, even in the event in which the tender law takes care to provide for the discount only on the premium or potential profit of the business, with the saving of labor costs”.(1)

(1)    No precedents given.

Source Administrative Justice