SERVICES
Public procurement
Public procurement: the contracting authority may accept a different collective bargaining agreement if the protections are overall equivalent
Council of State
A company challenged the award of a contract for the management of sewage sludge, claiming that the successful bidder had applied a national collective bargaining agreement (CCNL) different from the one indicated in the tender documentation. The tender required application of the Logistics, Freight Transport and Shipping CCNL, whereas the awarded company declared that it applied the Environmental Hygiene CCNL, which was nonetheless considered “equivalent” in terms of economic and regulatory protections.
The Council of State confirmed the first-instance decision rejecting the appeal, clarifying that the contracting authority must verify, prior to awarding the contract, the actual equivalence between the two collective agreements. However, such verification must be carried out in an overall manner and not be limited to a mere comparison of individual pay or regulatory items.
According to the Court, equivalence must be assessed in light of the consistency between the applied CCNL and the subject matter of the contract, ensuring that the treatment guaranteed to workers is not overall less favorable than that provided for under the agreement specified in the tender. In the case at hand, the contracting authority had conducted an in-depth investigation and obtained the opinion of a labor consultant, which showed that the Environmental Hygiene CCNL guaranteed employees a level of protection overall equal to, if not higher than, that of the Logistics CCNL.
The ruling thus reiterates the principle that, in public tenders, the technical discretion of the Public Administration in assessing adequacy and equivalence may be reviewed only in cases of manifest unreasonableness or misrepresentation of the facts, and that the court may not substitute its own assessment for that of the administration on the merits.