Decision of the week · Procurement · 12 June 2026
Council of State, Fifth Chamber, judgment of 12 June 2026, no. 4753
Cons. St., sez. V, sent. 12 giugno 2026, n. 4753
Official document published by the Italian administrative justice portal, freely accessible (in Italian).
By judgment no. 4753 of 12 June 2026, the Fifth Chamber of the Council of State upheld the exclusion from a tender of a company that had expressed its economic bid as an absolute value, while the tender rules required, on pain of exclusion, a single percentage discount on the base amount.
Tender clauses are interpreted first of all literally and systematically (Articles 1362 and 1363 of the Civil Code): where the clause is clear, there is no room for implicit meanings. Indicating the price in euros is not equivalent to the required percentage discount: otherwise, the requirement expressly imposed on pain of exclusion would be superfluous. The Council draws a suggestive parallel with Article 1326, third paragraph, of the Civil Code: like an acceptance given in a form other than that requested by the offeror, a bid that departs from the prescriptions remains without effect.
Procedural assistance (soccorso istruttorio) cannot be used to amend the economic bid: in the case at hand, the percentages later indicated by the company, reduced to the three decimal places required by the tender rules, produced values different from the price originally offered, in breach of the principle that bids cannot be modified.
Finally, the “result principle” of Legislative Decree 36/2023 does not allow a clear and unchallenged clause to be disapplied: the lex specialis binds the administration and the competitors alike, nor can the clause be deemed null under Article 10(2) of the Code, which refers only to the exclusion grounds of Articles 94 and 95.
For bid offices, the conclusion is clear: the bid must be drafted exactly as the tender rules prescribe, with no equivalents. A legal check of the documents before submission costs a fraction of a lost dispute.