Technical Discretion in Public Tenders: The Limits of Judicial Review

1. The Fact

   In recent months, specialized outlets such as Giurisprudenzappalti and Edilizia e Territorio have monitored a growing wave of litigation regarding the criteria for awarding the most economically advantageous tender. The case originates from a series of appeals filed by second-placed companies in strategic tenders, many of them linked to the PNRR.

   The core of the dispute concerned the assignment of technical scores: according to the appellants, the Boards acted arbitrarily, assigning numerical scores without sufficient analytical justification. In a pilot case that reached the Council of State on appeal, an engineering firm had obtained a first-instance ruling from the TAR ordering a re-evaluation of the scores via a technical verification. However, the Council of State overturned this decision, re-establishing the supremacy of administrative discretion over the court's substitutive claims.

2. 

   The Laws at Play

   The regulatory framework centers on Legislative Decree 36/2023 (the Public Contracts Code). Article 108 regulates the criteria for the most economically advantageous tender, requiring the best quality/price ratio.

   Article 7 of Annex I.1 defines technical discretion as the contracting authority's power to evaluate complex elements of the offer. However, the pillar of the new regulation is Article 2, which establishes the Principle of Result: the primary objective is the rapid and effective awarding of the contract. Procedurally, the provisions of the Code of Administrative Procedure, including Article 134, limit judicial review to legality only, preventing the judge from entering into the merits of the Commission's discretionary evaluations.

3. What Case Law Says

   Administrative case law has clarified that judicial review of technical discretion must take the form of extrinsic review. This means the court may verify the logical consistency of the evaluation process, compliance with tender rules, and the absence of macroscopic factual errors, but it can never substitute its own value judgment for that of the Board.

   It has also been reaffirmed that assigning a mere numerical score constitutes sufficient reasoning when the tender rules provide detailed sub-criteria. In essence, the judge cannot appoint technical experts to determine whether one project is «better» than another, as such an assessment belongs exclusively to the Public Administration's discretionary sphere.

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8. What it Teaches Professionals

   1. Rigor in the resistance test: before filing an appeal, counsel must meticulously verify whether a score adjustment would actually alter the ranking in favor of the client.

   2. Focus on manifest illogicality: the applicant's litigation strategy must concentrate on obvious factual misrepresentations or clear internal contradictions in the reasoning, rather than on challenging the qualitative merit of the offer.

   3. Importance of sub-criteria: the presence of a detailed sub-criteria framework in the tender documents renders a numerical score practically unassailable.

   4. Leveraging the Principle of Result: in the defense briefs of the contracting authority and co-respondent, this principle serves as a strong barrier against pretextual or dilatory litigation.

References: D.Lgs. 31 marzo 2023, n. 36 (Codice dei Contratti Pubblici)Art. 2 D.Lgs. 36/2023 (Principio del Risultato)Art. 108 D.Lgs. 36/2023 (Criteri di aggiudicazione)Allegato I.1 D.Lgs. 36/2023Art. 134 Codice del Processo Amministrativo (CPA)

Editorial oversight: Avv. Federico Papa·ICAMUpdated 2 July 2026Content drafted with AI support and subject to editorial source checks. Despite these controls, inaccuracies may remain: reports and rectification requests are welcome. Report a correction