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Costs for security are not to be declared in a public procurement for intellectual services
- 22/05/2017
Article 87, paragraph 4, of the old Italian Public Procurement Code (Legislative Decree no. 163/2006), provides that a tender may be considered odd if costs for security are not clearly indicated or are not appropriate with respect to the characteristics of the service or of the supply.
On this issue, in a public procurement for intellectual services, the “Consiglio di Stato” was recently asked to decide on the lawfulness of the exclusion of a competitor who had declared that costs for security were zero.
With Judgment no. 2098 of last 8th May, the “Consiglio di Stato” has stated that, when an intellectual service is involved, costs for security are not to be indicated. Therefore, it is not admissible to exclude a competitor, in that there is no breach of article 87, paragraph 4, Legislative Decree no. 163/2006 (now, article 50, Legislative Decree no. 50/2016).
However, even if indicating that costs for security are zero does not allow a contracting entity to exclude a competitor, it is necessary to ascertain the appropriateness of that indication.
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