Public contracts, Supply contracts, Public tender procedures, Lazio Regional Administrative Court, section 1 quater, judgment no. 18623 of October 25, 2025

Public tender procedures: on the interest in appealing and the identification of the opposing party and the determination of the value of the contract

Administrative justice – Interest in bringing proceedings – Public contracts and obligations of the public administration – Supply contracts – Participation of only two companies – Appeal against exclusion before the award – Opposing party – None

The nature and level of protection of the interest in competing for the award – which is and remains instrumental and not final – does not change based on the number of participants in the procedure because, in any case, the relationship with the good of life requires the necessary intermediation of the proceeding administration, which, following the opening of the bids, is called upon to make, following complex evaluations, the final decisions on whether or not to award the contract.

Before such a decision, each competitor only has the interest – not protected by the law – in competing with the narrowest possible group of candidates, which is not suitable for them to acquire the status of a counter-interested party in the proceedings in which others are cultivating their own interest, equally instrumental, in participating in the procedure”. (1).

Public contracts and obligations of the public administration – Supply contract – Amount of the provisional guarantee – Option clauses – Inclusion

Article 14, paragraph 4, Legislative Decree no. 36 of 31 March 2023, in wanting to include, within the overall value of the contract, any form of possible options, adopts a generic formulation, suitable to encompass not only the hypothesis of the option referred to in art. 1331 of the Civil Code, but also “spurious” or “hybrid” forms, in which the typical cause of the corresponding civil law figure is enriched with – or is altered and contaminated by – elements external to it, in accordance with the provisions of art. 120, paragraph 1, letter a), of Legislative Decree 36/2023 and, more generally, with the specificity of public works contracts.   (2).

In its reasoning, the section underlines that, moreover, even for framework agreements and dynamic purchasing systems ‒ which certainly do not grant the client any potestative right to entrust the performance of the service but rather require a new expression of consent by the private contractor (even if partially bound by the previous acceptance of the conditions set by the framework agreement or the dynamic purchasing system) for the purposes of, respectively, the stipulation of the implementing contracts or the awarding of specific contracts ‒ the amount to be taken into consideration is the maximum estimated amount net of VAT of the total contracts envisaged during the entire duration of the framework agreements or the dynamic purchasing system, pursuant to art. 14, paragraph 16, of Legislative Decree 36/2023, so that the determination of the overall value of the contract (and, therefore, of the provisional guarantee) is independent of the unilateral or consensual nature of the supply orders.

Conforming: C.g.a., legal section, March 31, 2021, no. 276; Regional Administrative Court for Lazio, section III, March 6, 2025, no. 4807.

Source

Administrative Justice