Respect for the Minimal Environmental Criteria: emphasis on participation in or executive phase of tenders?

The sentence in question addresses the topic of the “minimal environmental criteria” that administrations are required to fulfill in public auctions, through the insertion of appropriate technical requirements within tender documentation.

One asks, in particular, if economic operators are required to demonstrate respect of such prescriptions while already in the stage of participating in the procedure (and therefore within their own technical offer), or if the law applies exclusively to the executive phase of the contract.

In the case under consideration, a company proposed an appeal regarding the sentence of the Piedmont TAR, which had confirmed its exclusion from the tender having as object the furnishing of diagnostic systems for the execution of exams of clinical chemistry, immunometry, hematology, including works for the adaptation of premises and construction of plants.

Precisely in reference to these latter works, accessory and finalized for the adaptation of premises hosting new equipment, a deficiency of the offer presented by the appellant was detected, not considered respectful of the minimal environmental criteria in terms of use of “recycled plastics”.

In particular, the exclusion concerned the lack of regard for disposal- in accordance with the work specifications- which mandated the recycling of at least 30% of the plastic material employed in the prodromal works up until the execution of the supply.

Disposal that referenced in turn the so-called “CAM” (Criteri Ambientali Minimi, or Minimal Environmental Criteria) in accordance with Art. 34 of the Legislative Decree no. 50 of 2016 and specified in detail by the Ministerial Decree of 11/10/2021.

They consist of normative criteria that constitute to all effects a constraint in the management of public contracts, imposed on both the company in question and competing economic operators, as well as specifically oriented for environmental sustainability of public administration consumption.

The appellant had therefore declared in the offer a recycled plastic content equal to 16% of the total only to then, by way of supplementary clarifications, “make the necessary adjustments” and qualify that in reality the appellant should have included in their calculations also other plastic components used in the project and not initially counted.

In any case- according to the conjecture of the appellant- the orderly validation of the percentage of recycled plastic and, as a consequence, of conformity to the “CAM” should be reserved strictly to the executive phase and to that of evaluation of technical offers.

Therefore, 3 different problems became apparent:

• The identification of the procedural segment in which to locate obligation for respect of the “CAM” (or rather, if they applied to the evaluation phase of the offers or only to the testable checks in the executive phase);
• The possibility for the lex specialis to impose stricter obligations than those deriving from the law
• The possibility for the applicant to enact a “correction” of the technical offer in within what limits.

The first element was decisive for the purposes of acceptance of the appeal, insofar as the judgements of Palazzo Spada observed that the national law of reference locates the relevant checks in respect of minimal environmental criteria in the executive phase, or rather in the phase successive to being entrusted with the contract.

This aside from how the same phase of planning was expected within the tender documentation, or rather if the same constituted one of the components subject to evaluation on the part of the technical Commission (the so-called “executive planning”).

In accordance with these principles, the exclusion of the appellant business could never have depended on a presumed environmental inadequacy of the technical offer (and therefore of potential deficiency of the minimal parameters declared), but rather solely on a lack of planning only perceptible in the executive phase.

Therefore, conformity to the minimal environmental standards according to Art. 34 of the Code of contracts cannot be discerned in the phase of evaluation of the offers, having to be ascertained in concrete (and therefore in the execution of the contract) the effective impossibility for the applicant to respect the normative prescriptions of reference.

In conclusion, such a sentence assumes a decisive relevance for establishing the method of validating the presence of the aforesaid minimal environmental requirements, that appear to therefore be relieved from the judgement of the panel of judges.