Article 170. Offers containing products originating in third countries.

1. Without prejudice to the obligations assumed towards third countries, this article applies to offers containing products originating from third countries with which the European Union has not concluded, in a multilateral or bilateral context, an agreement guaranteeing access comparable and effective nature of European Union companies to the markets of such third countries. 2. Any offer submitted for the award of a supply contract may be rejected if the part of the products originates in third countries, in accordance with the regulation (EU ) n. 952/2013 of the European Parliament and of the Council, of 9 October 2013, exceeds 50 percent of the total value of the products that make up the offer. In the event of failure to reject the offer pursuant to this paragraph, the contracting authority or granting body duly motivates the reasons for the choice and transmits the relevant documentation to the Authority. For the purposes of this article, the software used in telecommunications network systems are considered products. 3. Without prejudice to the provisions of the third sentence of this paragraph, if two or more offers are equivalent based on the award criteria referred to in the article 108, the offer that cannot be rejected pursuant to paragraph 2 of this article is preferred. The value of the offers is considered equivalent, for the purposes of this article, if the price difference does not exceed 3 percent. However, an offer is not preferred to another by virtue of this paragraph, if the contracting authority or the granting body, by accepting it, is required to purchase material with technical characteristics different from those of the already existing material, with consequent incompatibility or technical difficulties of use or maintenance or disproportionate costs. 4. For the purposes of this article, to determine the part of the products originating in third countries referred to in paragraph 2, third countries to which, by decision of the Council of European Union pursuant to paragraph 1, the benefit of the code has been extended. 5. In coherence with the provisions of paragraph 2, among the evaluation criteria of the most economically advantageous offer referred to in article 108, paragraph 4, may be considered by the contracting authority, for each of the product items that make up the offer, the percentage value of products originating in third countries, pursuant to Regulation (EU) no. 952/2013 of the European Parliament and of the Council, of 9 October 2013, compared to the total value of the products that make up the offer. The contracting authorities guarantee that the criterion referred to in the first period is applied in compliance with the principles of non-discrimination in relations with third countries and proportionality. EFFECTIVE FROM: 1 July 2023