The principle of result has been codified for the first time in article one of the current Public Procurement Code, published in 2023. However, the administrative jurisprudence has unquestionably stated that said principle is already part of the Italian legal system, and therefore it is applicable to cases subjected to previous laws regulating this matter.
An accurate analysis of the most recent case law suggests that the principle of result sometimes contributes to the resolution of disputes, jointly with other principles and juridic institutions, which may be sufficient on their own. For example, when a tenderer lacks a participation requirement, the principle of result, the closed number of reasons for exclusion, and an interpretation that favours the widest participation in the tender are all instrumental in allowing the Judge to admit them to the bidding process. The Administrative Court for the Tuscany Region reached similar conclusions in T.A.R. Toscana, Sez. III, 7 febbraio 2025, n. 230, when, while considering the case of a company that was eventually awarded the tender, whose submitted documents were illegible, ruled that the prospect of finding the same information elsewhere had rectified the mistake. In fact, not only had the result of the document submission been reached, albeit through other materials, but moreover had the contractor been excluded, the principle of favouring the widest participation would have been thwarted.
However, it is clear that a strong leaning towards the widening of the concept of legality is extensive in the administrative courts and it is often the main reason behind the judge’s decision. The offers are interpreted in accordance with the objectives they are aiming to achieve (i.e. public interest), even when such a reading goes against the literal meaning of the rule, leading to an alteration of the tender law which was accepted by all participants at the time of their application. For example, Cons. Stato, Sez. V, 27 novembre 2024, n. 9510 undoubtedly states that interpreting the rules of the bidding process in line with the objective they were written to achieve relieves the tender regulations from a strict reading. In that particular case, such an interpretation essentially changed the score calculation method and led the Public Administration to annul the tender process. This reasoning was justified by the “irrational outcomes” in terms of result that a traditional interpretation would have generated (i.e. the exclusion of 7 out of the 11 participants, including the winning operator whose offer had been deemed appropriate in a cross-examination), even though the tender itself had not been appealed.
Therefore, the principle of result has become an overriding criterion in the exertion of discretionary power by the public administration, which is asked to adapt the rule to each specific case, thereby interpreting the economic operator’s will. The result–oriented reading of the bidding rules overcomes the limitations imposed by the traditional strict application of the tender notice provisions, now viewed as excessive formalities (see Cons. Stato, Sez. V, 5 febbraio 2025 n. 1620).
Moreover, said jurisdictional tendency is adhered to by a majority of legal scholarship.
Nevertheless, there are more “cautious” applications of the principle of result which specify that it should neither violate the protection of competition nor the principle of equal opportunity among the bidders. According to this less common case law, the achievement of the result should not be at odds with the principles of legality, transparency, and professionalism as regards the business operator. An example of this more rigid interpretation can be found in Cons. Stato, Sez. V, 25 settembre 2024, n. 7798, where the theory of a clerical error was not accepted when the environmental status of a selection of buses was misclassified, in violation of the evaluative criteria pertaining to the offer. Said theory was rejected because it would have coincided with not only an unlawful and belated alteration of the terms of the offer, but also a violation of the rules regulating the matter, which should always remain an essential point of reference.
In conclusion, an offer that lacks participation requirements or disregards one of the evaluation criteria set out in the tender notice is unlikely to be excluded from the bidding process, provided the result of the public procurement procedure is achieved. Thus, the principle of legality is widened and both the exertion of the public administration’s discretionary power and the judicial review become more extensive, reducing what has traditionally been considered an unalterable defect to mere irregularities that are insufficient to exclude private operators from the tender process.