Key takeaways
In particular, the appellant complained of violations of the tender documentation by the successful bidder, which had converted the offer to supply a certain quantity of product into the equivalent quantity calculated in milliliters of the same product.
The court judgment is interesting because the administrative judge, in rejecting the appeal, opted sharply and decisively for an interpretation of the tender provisions aimed at implementing the underlying ultimate goal of securing the supply of the pharmaceutical product covered by the negotiated procedure, accompanied by the therapeutic capabilities deemed necessary and specified in the tender documentation, at the lowest cost, without formal elements being able to impact the primary purpose of the tender. The Court speaks, in fact, of a real "duty" of the awarding administrations "to inspire their discretionary choices more to the achievement of the substantial result than to a merely formal reading of the rule to be applied", with the consequence that the administration must always strive for the best possible result, and this in order to protect "the public interest for which a tender procedure is envisaged".
In addition, the Administrative Judge recalls how "every awarding administration has the responsibility for tenders and must carry them out not only respecting formal legality, but always keeping in mind that each tender is functional to carry out a public work (or to acquire services and supplies) in the way that best serves the interests of the community". It follows, therefore, that this principle must be interpreted and implemented as that principle that expands the evaluative powers and discretion of the awarding administrations in order to strive for the best possible result.
