As is well known, the new Public Procurement Code (Legislative Decree No. 36 of 31 March 2023) codifies the ability of contracting authorities to invite private entities to promote public-private partnership initiatives. This often results in the simultaneous submission of multiple proposals with the same object.

This opens an extremely complex and delicate phase, in which the contracting authority must act with the utmost care to avoid the risk of appeals. It is important to note that the notice effectively initiates a two-stage procedure:

(i) the first stage, which puts the proposals received by the authority in competition (culminating in the identification of the promoting entity);
(ii) the second stage, based on the promoter’s proposal, which, by virtue of the pre-emption right, enjoys a significant competitive advantage over any other potential bidders.

In the context of stage (i), the authority must necessarily compare the proposals, but only after having analyzed them individually, requesting from each proposer the integration of any elements deemed appropriate to improve them.

Case law is extensive and unanimous in recognizing that the evaluation phase of a PPP proposal is characterized by very broad discretion on the part of the contracting authority.

However, in a context where the authority must choose among multiple proposals, the exercise of this discretion must be conducted with care, avoiding decisions that could be perceived as arbitrary.

The risk, as mentioned, is that of litigation, based on claims of alleged errors in the assessment process.