The most economically advantageous tender

Article 108 provides that contracting authorities award on the basis of the most economically advantageous tender, identified either on the best quality to price ratio or on the price or cost element, following a cost effectiveness approach such as life cycle costing. The two variants of the criterion follow distinct calculation logics.

The second form is less well known and deserves a note. Life cycle costing, governed by a dedicated annex, considers the costs borne over the whole useful life of the performance rather than the purchase price alone. It is a means of favouring technically better tenders without recourse to discretionary quality criteria, and its use is growing on contracts with a strong services and energy content.

The code identifies the cases in which the best quality to price ratio is the only available criterion. The list is exhaustive and admits no analogical extension.

They include contracts for social services and for hospital, care and school catering, together with labour intensive services and the other situations the article lists. The common feature is the weight of the human component in the service.

The code has also extended the obligation to procedures the previous decree did not cover, including the competitive dialogue, the innovation partnership and the design and build contract. The extension concerns procedures with a design content.

The lowest price criterion remains available for services and supplies with standardised characteristics or whose conditions are defined by the market, and below threshold the choice is largely left to the contracting authority. The choice must in any event be stated in the tender documents.

Here sits the change that most affects the preparation of a tender, and that contradicts what many operators take for granted. It concerns the removal of the cap on the price score.

The 2023 code removed the thirty per cent cap on the price score and the corresponding seventy per cent floor on quality, leaving contracting authorities full discretion in weighting the two components. The weight of price can therefore vary very widely between procedures.

The general rule is therefore freedom. Two exceptions remain in which the rules themselves reinstate a cap.

Situation	Cap on the price score
IT goods and services used in contexts connected with strategic national interests	10 per cent
Labour intensive contracts	30 per cent

The operational consequence is clear. There is no longer a typical weighting to expect, and reading the tender documents to identify the actual weight of the two components is the first step in preparing a tender. An authority may now lawfully give price a far greater weight than previous practice made usual, or a far smaller one.

One general limit has been affirmed by constitutional case law: imposing a mandatory minimum score on the technical tender infringes the autonomy of contracting authorities, which the code expresses as an exclusive state competence. The limit concerns regional rules imposing minimum thresholds.

To apply the weighting and attribute a score to each element of the tender, contracting authorities use methods identifying the most advantageous tender through a single final numerical parameter. The permitted methods are described in the annexes to the code.

The wording is technical and has a practical consequence: the comparison between tenders resolves into a number, and every component of a tender contributes to that number through a formula stated in the documents. Reading the formula therefore precedes every pricing choice.

Two elements must therefore be read before deciding on strategy. The weighting, which says how much each component counts. And the formula for attributing the price score, which says how many points a given discount actually produces. Different formulas return very different scores for the same discount, and some sharply compress the advantage of large discounts.

One technical mechanism has considerable effects on the outcome and is not always applied. It is the rescaling of technical scores.

Rescaling means bringing the best tender on a given component up to the maximum score available, proportionally adjusting the others. It serves to preserve the balance between the components of a tender, so that on each of them the best tender obtains the maximum score.

The decisive point is that it is a discretionary choice of the contracting authority, which must be expressly provided in the tender documents. Without an express provision it does not apply.

For a bidder the consequence is that the presence or absence of rescaling changes the relative value of a technical point against a price point, and it must be checked in the documents before calibrating a tender. The check costs a few minutes and changes the tender strategy.

The code requires the operator to state in its financial tender, failing which it is excluded, labour costs and its own costs of complying with health and safety at work obligations. The statement must be made separately and not folded into the total price.

One exemption must be known precisely because it concerns technical services directly: the obligation does not apply to supplies without installation nor to services of an intellectual nature. Design services generally fall among those of an intellectual nature.

Engineering and architecture services ordinarily fall among services of an intellectual nature, and the related financial tender therefore does not require a separate statement. The tender documents of the individual award should still be checked, as they may impose requirements of their own.

Three points follow from the above.

Reading starts from the evaluation criteria and sub criteria, not from the description of the subject matter. It is the criteria that say what the committee will assess, and a tender built on one's own idea of quality loses points on elements the bidder treated as secondary.

The structure of the document follows the order of the criteria. A committee attributing scores looks for the answers, and a tender organised differently from the criteria forces it to search, with the effect that some answers are not found.

Every assertion should be made verifiable. Quality criteria are assessed on objective elements, and a tender that asserts without documenting gives the committee a weak basis for reasoning even where the content is good.

Assuming a typical weighting is the first, and ignores that the general cap has been removed and that the authority may calibrate the components freely. It leads to building a tender on a balance the notice does not set.

Deciding the discount before reading the formula for attributing the price score is the second, and produces reductions that do not move the ranking. With a non linear formula a larger discount may be worth only a few more points.

Not checking whether rescaling applies is the third, and distorts the calculation of the relative value of a technical point against a price point. The check is done by reading the paragraph on evaluation criteria.

Building the technical tender on one's own idea of quality rather than on the stated criteria is the fourth, and is the costliest because it becomes apparent only when the ranking is published. The technical report should be organised following the order of the criteria.

Omitting the statement of labour costs where it is required is the fifth, and leads to exclusion. Exclusion follows even where the tender is otherwise the best.