With its judgment No. 554/2019, the Administrative Court of the Puglia Region upheld the appeal filed by a pharmaceutical company against the resolution by which a contracting authority excluded the appellant from a public tender procedure and awarded the same procedure to a competitor.
In the case at hand, the subject of the tender was the supply of medicinal products identified on the basis of the active ingredient, and the characteristics concerning the therapeutic indication, the pharmaceutical form and the dosage, and the exclusion of the appellant was grounded on the alleged noncompliance of the relevant offer with said requirements. In particular, as the Regional Administrative Court highlighted in its decision, although the products offered by the appellant and the successful bidder could be considered the same, only the medicine offered by the latter had received approval for the therapeutic indication required by the tender documentation, whereas, as regards the medicinal product offered by the appellant, which had not received the relevant approval, that indication could be considered relevant only with respect to its "off-label" use.
After having ascertained that only the medicinal product offered by the successful bidder had been authorized for the purposes specifically identified by the contracting authority in the tender documentation, the Regional Administrative Court upheld the legitimacy of the exclusion of the appellant due to the inadmissibility of the "off-label" use of the relevant medicine.