Administrative, Public Contracts and Public Administration Obligations, Tender, State Council, Section V, judgment of December 4, 2025, no. 9573

On the right of access to the technical offer in the presence of technical and commercial secrets and on the running of the deadline for challenging the award

• Public contracts and public administration obligations – Tender – Administrative justice – Appeal – Deadline

The deadline for filing an appeal against tender documents begins to run from the moment the economic operator has actual knowledge of the content of the offers and tender documents from which to deduce the deductible defects, in order to avoid the filing of blind appeals, with a consequent increase in litigation, in defiance of the need for expeditious proceedings in public procurement procedures. (1)

The section therefore rejected the objection of inadmissibility raised by the appellant, referring to the failure to challenge the award, since the request for access had not yet been processed.

• Public contracts and public administration obligations – Tender – Technical and commercial secrets – Defensive access – Balancing

Pursuant to Article 35, paragraph 5, of Legislative Decree No. 36 of March 31, 2025, administrative access is permitted to the bidder where it appears indispensable for the defense of its legal interests in court; therefore, the unsuccessful bidder’s right to defense serves as a value to be compared with the protection of technical and commercial secrets, which cannot be indiscriminately restricted by the confidentiality and secrecy requirements raised by bidders who have submitted a request to suppress parts of the bids. The contracting authority is responsible for effectively striking a concrete, balanced, and reasoned balance between defensive needs and the protection of corporate confidentiality. (2)

• Public administration contracts and obligations – Tender – Defensive access – Technical and commercial secrets – Limit

For the purposes of limiting the right of access to the technical records and documents of the successful bidder, a generic statement that these relate to the bidder’s own know-how is not sufficient; a balancing act is necessary to establish a balance between the requirements of confidentiality and transparency within public tender procedures.

Disclosure may be denied only where, within the framework of an ad hoc balancing exercise that eludes abstract hierarchies and a priori models, a specifically identified piece of information, susceptible to economic exploitation, capable of guaranteeing a competitive advantage to the operator in the relevant market, is relevant as a so-called borderline interest, and the data in question exhibits actual and demonstrable characteristics of objective secrecy. (3).

• Public Administration Contracts and Obligations – Tender – Defensive Access – Burden of Proof

In the event of defensive access, pursuant to art. 35, paragraph 5, Legislative Decree 31 March 2023, n. 36, while it is true that the burden of proving the essentiality of the documentation falls on the applicant, it is equally undeniable that the extent of the evidentiary burden in question depends on the specific case. (4).

In this regard, the section has highlighted the small difference in scores between the applicant, who came in second, and the successful tenderer (in similar terms, Council of State, Section III, 25 July 2025, no. 6620).

(1) Conforming: Council of State, Section V, 18 October 2024, no. 8352 and – albeit in reference to a tender governed by Legislative Decree 18 April 2016, no. 50 – 15 October 2024, no. 8257.

(2) In accordance with: Council of State, section III, 25 July 2025, no. 6620; Court of Justice of the European Union, section IX, order 10 June 2025, C-686/24, Nidec Asi s.p.a., Ceisis s.p.a. Sistemi Impiantistici Integrati which, in response to the following preliminary question posed, in relation to art. 53, paragraphs 5 and 6, of Legislative Decree no. 50 of 2016, with order Council of State, section V, no. 8278 of 2024 “If Article 39 [of] Directive 2014/25/EU – from which it is inferred, as well as from Article 28 [of] Directive 2014/23 [/EU of the European Parliament and of the Council of 26 February 2014 on the award of concession contracts (OJ 2014, L 94, p. 1)] and Article 21 [of] Directive 2014/24/EU, that the conflict between the right to judicial protection and the right to the protection of trade secrets is resolved by means of a balance which does not necessarily give precedence to the first – precludes [a] national regulation (…) which provides for the exhibition of documentation containing technical or trade secrets in the case of pre-arranged access to judicial protection, without providing for balancing methods which take into account the needs of protection of technical or trade secrets” has thus ruled “ Article 39 of Directive 2014/25/EU of the European Parliament and of the Council of 26 February 2014 on procurement procedures by entities operating in the water, energy, transport and postal services sectors and repealing Directive 2004/17/EC, read in conjunction with Articles 70 and 75 of that directive, must be interpreted as precluding national legislation on the award of public contracts which requires that access to documents containing technical or trade secrets transmitted by a tenderer be granted to another tenderer where such access is necessary in order to guarantee the latter’s right to effective judicial protection in the context of a procedure relating to the award of the contract, without that legislation allowing contracting entities to strike a balance between that right and the requirements relating to the protection of technical or trade secrets”.

(3) Conforming: Council of State, Section V, 1 December 2025, no. 9454; Court of Justice, Section X, order 10 June 2025, C-686/2024, Nidec Asi s.p.a., Ceisis s.p.a. Sistemi Impiantistici Integrati; regarding the need to rely on objective secrecy: Council of State, Section V, 15 October 2024, no. 8257; 25 June 2025, no. 5547.

(4) Conforming: Council of State, Section V, 25 June 2025, no. 5547.

Source: Administrative Justice