TAR per la Sicilia, Catania, section III, 22 April 2026, no. 1157
Article(s) in Directive 2014/24/EU: Art. 18
Topic: Digitisation of public contracts: the limits of automated decision-making and the human element
Member State: IT
Court/rev. board: TAR Sicilia
1. IMPLEMENTATION / RELEVANT NATIONAL LEGISLATION
art.3 of l.241/90, artt. 19-30 of D.lgs 36/2023, art. 97 of Italian Constitution
2. FACTS
In the city of Catania, an open tender procedure was launched, applying the criterion of the most economically advantageous tender for the award of the water network restoration works. The tender notice, published on 5 July 2025, stipulated that the procedure would be conducted electronically. With regard to the marks to be awarded to competing tenderers, a maximum of 100 points was set. The second-ranked firm, Guarnieri S.r.l., requested access to the case files[1], through which it identified calculation errors and incompleteness in the recording of the mathematical operations carried out by the Evaluation Committee for the allocation of marks, which led to the firm Consorzio Stabile Medil S.c.p.a. being ranked first. It lodged an appeal with the Sicilian Administrative Court, challenging the resolution awarding the contract and all other related documents.
[1] In the Italian Administrative law, it is a typology of right given to interested parties, under Article 22 of Law 241/1990. They are entitled to examine and obtain copies of administrative documents, provided they can demonstrate a direct, specific and current interest, a link to a legally protected situation, and the existence of a document.
3. JUDGMENT
The Regional Administrative Court of Sicily, in examining the main appeal, notes that the appellant, in submitting a detailed technical report, identified the calculation error made by the contracting authority and, at the same time, derived the correct results simply by applying the mathematical formula contained in the tender notice. By contrast, neither the defendant administration nor the opposing consortium produced their own expert reports in Court to refute the objective mathematical data presented by the appellant. The contracting authority, in particular, stated in its defence submissions that no calculation sheets were available for inspection, given that all mathematical operations had been carried out by the software used, and sought to limit its liability to the entry of the initial data.
The judge upheld the appeal, setting aside the contested measures: although the new Public Contracts Code includes digitalisation amongst its principles, this can only serve as a means to support other principles of constitutional relevance, such as impartiality, transparency and the proper conduct of administrative action, which cannot be sacrificed for protecting the principle of efficiency. In particular, the responsibilities and functions entrusted by law to administrative bodies cannot be delegated or transferred to a computerised system on the assumption that it is infallible; computerised operations must always be verifiable and amendable by the competent bodies (‘human in the loop’).
Comment:
The digital revolution, which is also permeating the legal sphere and, specifically, the public procurement sector, inevitably raises many questions – including ethical ones. Among others, the possible or potential replacement of human input, both in terms of decision-making and intellectual contribution.
Although this judgement does not originate from the administrative court of last instance, it is extremely significant in that it systematises the principles of administrative law at national level – principles which are also transposable to the European context – whilst placing the most recent developments regarding the digitalisation of public administration and public procurement in an appropriate framework. The new Italian Public Contracts Code, whilst also anticipating European legislation on artificial intelligence (Regulation No 1689/2024), has codified and regulated in detail the principle of the digitalisation of the life cycle of public contracts (Articles 19 to 30), which explicitly recognises the necessity of human input. The use of algorithms and automated procedures must be regarded as instrumental and ancillary to administrative activities and must ensure respect for fundamental rights, including the protection of personal data and the right of defence.
It should be noted that the main point of the case in question is not the arithmetic error itself, which led the conclusions of the Court, but rather the finding that there was no official document setting out the mathematical calculations that gave rise to the final scores and, consequently, to the drawing up of the ranking list. Even if no arithmetic error had been identified, the second-ranked company would still have been justified in requesting access to the documents in order to understand the reasons behind the scores, having noted a lack of transparency, impartiality and fairness in the administrative process.
