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 (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 new 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, Article 134 of the Administrative Process Code limits judicial review to legality only, preventing the judge from entering into the merits of the Commission's subjective evaluations.

3. What Case Law Says

   Case law has clarified that judicial review of technical discretion must be an extrinsic review. This means the court can verify whether the procedure was logical, whether the tender criteria were respected, and whether there are macroscopic factual errors, but it can never substitute its own value judgment for that of the Board.

   It has also been reaffirmed that a simple numerical score is considered sufficient motivation when the tender rules provide highly detailed sub-criteria. Essentially, the judge cannot appoint technical experts to determine if one project is «better» than another, as such an evaluation belongs exclusively to the Public Administration's autonomy.

5. Analysis drafted and verified with edit.legal

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8. What it Teaches Professionals

   1. The importance of the resistance test: before challenging, the lawyer must recalculate whether the potential correction leads to victory.

   2. Focus on manifest illogicality: the defense must concentrate on factual errors or internal contradictions, rather than the qualitative value of the offer.

   3. Attention to sub-criteria: if the tender is detailed, the numerical vote is almost unassailable.

   4. Leveraging the Principle of Result: in defenses, this principle should be invoked to counter attempts to slow down procedures.

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 2026