Art. 97. Abnormally low tenders

1. Economic operators shall provide, upon request of the contracting station, explanations on the price or costs proposed in the tender where those appear to be abnormally low, on the basis of a technical judgment on the congruity, seriousness, sustainability and feasibility of the tender.

2. Where the award criterion is the lowest price, the congruity of tenders is assessed on the tenders presenting a downward equal to or exceeding a determined threshold of anomaly, in order not to make the reference parameters for the calculation of the threshold pre-determinable by tenderers, the responsible official or the jury proceed to the draw, during the competition, of one of the following methods:

a) arithmetic average of the percentage downwards of all admitted tenders, with exclusion of the 20%, rounded to the superior unit, respectively of the highest downwards tenders and of the lowest downwards tenders, increased by the arithmetic average deviation of the percentage downwards exceeding the abovementioned average;

b) arithmetic average of the percentage downwards of all admitted tenders, with exclusion of the 20% respectively of the highest downwards tenders and of the lowest downwards tenders, rounded to the superior unit, taking into account that if the first figure following the decimal point, of the sum of the offered downwards by admitted tenderers is equal to zero the average remains unchanged; where the first figure following the decimal point of the sum of the offered downwards by admitted tenderers is odd, the average shall be percentage decremented of a value equal to that figure;

c) arithmetic average of the percentage downwards of all admitted tenders, increased by 15%;

d) arithmetic average of the percentage downwards of all admitted tenders, increased by 10%;

e) arithmetic average of the percentage downwards of all admitted tenders, with exclusion of 10%, rounded to the superior unit, respectively of the highest downwards tenders and of the lowest downwards tenders, increased by the arithmetic average deviation of the percentage downwards exceeding the abovementioned average, multiplied by a coefficient sorted by the jury, the responsible official, at the time of his settlement, between the following values: 0.6, 0.7, 0.8, 0.9.

3. Where the award criteria is the most economically advantageous tender, the congruity of the tenders shall be evaluated on the tenders presenting both the price-related points and the points related to the other evaluation elements, both of them equal to or exceeding the four fifths of the corresponding maximum points as provided for in the call for competition.

3-bis. The calculation referred to in paragraph 2 is made when the number of the admitted tenders is equal to or exceeding five. paragraph introduced by legislative decree no. 56/2017 in force from 20-5-2017

4. The explanations referred to in paragraph 1 may, in particular, relate to:

a) the economics of the manufacturing process of the products, services provided or of the construction method;

b) the technical solutions chosen or any exceptionally favorable conditions available to the tenderer for the supply of the products, the provision of services or for the execution of works;

c) the originality of the works, supplies or services proposed by the tenderer.

5. The contracting authority shall request in writing, giving the tenderer a period not shorter than fifteen days, the presentation, in writing, of the explanations. It excludes the offer only if the proof provided does not sufficiently justify the low level of prices or proposed costs, taking into account the elements referred to in paragraph 4 or if it has established, in the manner referred to in the first sentence, that the offer it is abnormally low because:

a) does not comply with the obligations referred to in Article 30, paragraph 3;

b) does not comply with the obligations set out in Article 105;

c) the corporate burdens of safety referred to in article 95, paragraph 10, are incongruent with respect to the size and characteristics of the works, services and supplies;

d) the cost of personnel is lower than the minimum wage salaries indicated in the appropriate tables referred to in Article 23, paragraph 16.

6. No justifications are allowed in relation to minimum mandatory salary treatment established by law or sources authorized by law. Furthermore, no justifications are permitted in relation to the security charges referred to in the security and coordination plan provided for by article 100 of the Legislative Decree of 9 April 2008, no. 81. The contracting authority may in each case evaluate the adequacy of each offer which, on the basis of specific elements, appears abnormally low.

7. The contracting authority, where it determines that a tender is abnormally low because the tenderer obtained a State aid may exclude this offer exclusively on that ground, only after having consulted the tenderer and if the tenderer is not able to demonstrate, within a sufficient time limit set by the contracting station, that the aid was compatible with the internal market within the meaning of Article 107 TFEU. The contracting station shall exclude an offer under those circumstances and shall inform the European Commission.

8. For works, services and supplies, when the award criterion is that of the lowest price and in any case for amounts below the thresholds referred to in Article 35, the contracting authority may provide in the announcement the automatic exclusion from tenders of tenders have a percentage of discount equal to or higher than the anomaly threshold identified in accordance with paragraph 2. In this case, paragraphs 4, 5 and 6 do not apply. However, the right of automatic exclusion cannot be used when the number of bids admitted is lower than ten.

9. The "Cabina di Regia" referred to in Article 212, upon request, makes available to other Member States, by means of administrative cooperation, any information at its disposal, such as laws, regulations, applicable collective agreements or national technical standards, relating to the evidences and documents produced in relation to details referred to in paragraphs 4 and 5.