With Judgment no. 257 of 4 November 2024, the Regional Court of Administrative Justice (TRGA) of Bolzano ruled that the Gender Equality Certification[1] (hereinafter also the “Certification”) relates to a subjective condition intrinsic to the company and, as such, cannot be the object of a bonus-based contract because it cannot be compared to a resource to be made available to third parties or to be used in the performance of a work or service.

The Certification was introduced by domestic legislation in Law no. 162 of 5 November 2021. This regulation inserted Article 46-bis into the Equal Opportunities Code (Legislative Decree no. 198/2006), which provides that as of 1 January 2022, companies can obtain Certification that attests to measures concretely adopted by the employer to reduce the gender gap within the company.

The Certification has been included in the Code of Tenders that allows participants who have obtained the Certification, to obtain a better ranking in tenders for the procurement of services and supplies.

In this specific case, the TRGA Bolzano ruled on the appeal brought by a company which was the runner-up in a tender procedure, against the Contracting Authority’s decision to award the contract to a Temporary Grouping of Companies (the “RTI”) consisting of two companies: the principal and the agent.

The applicant company challenged the award decision, requesting its annulment, and claiming that the Contracting Authority had awarded the RTI a bonus score for possessing the gender equality certification even though only the agent company (and not also the principal) possessed said certification.

In fact, since the principal company did not possess the Certification, it had entered into an outsourcing agreement with the agent company of the RTI.

However, according to the appellant, the Certification could not be considered as an object to award the bonus for the following reasons:

1. the special laws for tenders do not allow recourse to outsourcing, in cases where the participant is an RTI, to address the absence of the abovementioned certification of one of the members of the RTI. With reference to the gender equality certification, the Tender Specifications expressly stated that “[i]n the case of RTIs, consortia, EEIGs and enterprise networks, the certification must be presented by everyone”;
2. the bonus score is provided to acknowledge a subjective condition of the participant that must already exist at the time of the tender. Article 108, paragraph 7 of Legislative Decree 36/2023 provides that the awarding of the bonus score to companies that have adopted policies aimed at achieving gender equality pursues the purpose of urging companies to adopt organisational and production policies oriented towards the achievement of primary and non-individual objectives and, therefore, to reward the subjective condition of the participant that has already implemented concrete measures and achieved gender equality (or is in the process of achieving it).

The outsourcing contract concluded between the two companies would therefore not be able to transfer the requirement to the associated company.

The Administrative Judge upheld the appeal of the runner-up company and, as a result, annulled the decision to award the tender (together with all the contested documentation).

The TRGA explained that the legislator had provided for the possibility of awarding a bonus score to companies that have implemented important measures in favour of gender equality within the business contexts in which they operate, and this is an intrinsic quality of their business organisation that, as such, must be certified by a special accredited body.

According to the TRGA, it follows that: ‘this quality cannot be transferred by an outsourcing contract that provides consulting activities, makes available operational standards and intervention procedures or even technical-organisational support or other activities to the associated company. In fact, such an outsourcing contract is, in any case, unsuitable to ensure that the procedures adopted are actually functional and effective in achieving gender equality in the business organisation of the associated company, also because such an assessment is reserved solely for accredited certification bodies.”

This is a particularly innovative decision on gender equality certification in public procurement.

With this ruling, the Administrative Judge emphasised the importance of the gender equality certification as a tool to incentivise companies to take appropriate measures to reduce the gender gap in all areas and to promote greater inclusion of women in the job market, as also envisaged by the National Recovery and Resilience Plan (“NRRP”).

It is the NRRP (Mission 5, Investment 1.3) that specifically envisages the activation of a National System of Gender Equality Certification, with the aim of incentivising companies to adopt adequate policies to reduce the gender gap in all those areas with the greatest issues.

Once again, what emerges is the importance of certification in public procurement which constitutes a reward mechanism for companies that have been certified and can therefore obtain a higher score and, consequently, a better ranking.

This ruling confirms the substantial and, not merely, formal nature of the Certification requirement, which is the result of a company’s internal process and cannot be exchanged or outsourced in the context of public procurement.

[1] For a more detailed study, please see the following article by Carlotta Carta e Beatrice Gallucci: “La certificazione della parità di genere: evoluzione normativa e nuovo codice dei contratti pubblici”, i: https://ntplusdiritto.ilsole24ore.com/art/la-certificazione-parita-genere-evoluzione-normativa-e-nuovo-codice-contratti-pubblici.