With its Decision No. 3873 of 8 March 2023, the Regional Administrative Court of Lazio ("TAR Lazio – Roma") issued a decision concerning gender equality clauses in public tenders. In the case at hand, the appellant participated in a public tender concerning the awarding of armed surveillance and guarding services for a hospital, for a duration of 12 months. The appellant complained of a violation of the law in the selection criteria and the composition of the commission. Specifically, the appellant argued that the criteria used by the contracting authority to grant more points to certain gender equality requisites should not apply in this case, as it was not a tender that was covered by the PNRR public tender discipline (Decree Law No. 77/2021). The TAR Lazio – Roma rejected the claim as the principle of economic efficiency can be subject to criteria inspired by social needs, as provided for in Article 30(1) of Legislative Decree No. 50/2016 (the "Code of Public Contracts"). Furthermore, Article 95(6)(a) of the Code of Public Contracts also allows for the inclusion of "quality" as a criterion for the evaluation of an offer, which includes technical excellence, aesthetic and functional characteristics, accessibility for people with disabilities, adequate design for all users, safety and health certifications, and social characteristics. Therefore, the decision to reward competitors who have invested in measures to prevent gender discrimination is legitimate and exempt from criticism. While such mechanisms are typically applied to selection procedures for the award of European funds, the national legal system has recently invested in similar protection instruments.
Originally published by March, 2023
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