With its decision No. 2536/2019, the Council of State dismissed the appeal of a biomedical company against the decision by which the Administrative Court of the Tuscany Region confirmed the resolution of a contracting authority awarding a tender procedure to a competitor. The appeal was grounded on the alleged nonconformity of the technical offer submitted by the successful bidder with the requirements laid down in the technical specifications, according to which the devices offered had to be of the "latest generation", under penalty of exclusion from the relevant procedure.
In particular, the appellant claimed that the successful bidder offered a medical device which was first introduced on the market in 1998, whereas in 2013, the same company launched a new product representing the technological evolution of the former. After having noticed that the tender documentation did not provide a definition of "latest generation" medical device, the Council of State resolved that it was not possible to confirm compliance with such requirement on the basis of the date on which the device was placed on the market and that, therefore, the contracting authority's request should be construed as an expression of the will not to receive offers of products completely "off the market" due to any technological innovation that occurred after these have been placed on the market.
In dismissing the appeal, the Council of State also clarified that the date on which a medical device is placed on the market does not automatically and necessarily determine the level of technological supremacy of the same device, nor its level of progress in terms of performance.