Can the award notification implicitly indicate a decision to withhold the technical offer?
The case
On 18 April 2025, the Neapolitan Health Authority notified all tender participants of the contract award and provided a hyperlink to download the minutes, the underlying documents and the technical offer of the winning bidder—although the latter was fully redacted.Notably, the communication contained no express indication of any decision concerning the redaction of the successful bidder’s technical offer.The economic operator ranked second therefore submitted a request for access to the documents, arguing that under Article 36 of Legislative Decree 36/2023 the contracting authority is required to publish any decisions adopted in response to requests for redaction.The Administration replied by releasing the technical offer in a fully redacted form. The operator then lodged an appeal which was declared out of time, for the reasons set out below. Grounds of the decisionThe judges held that Article 36(3) requires the contracting authority, when notifying the award, to state any decisions taken regarding requests to redact parts of the tenders. Such decisions must be challenged within the strict ten-day limitation period running from the date of the award, as set out in paragraph 4.However, where the contracting authority fails to publish a specific decision on redaction, the award notification itself must be considered an implicit indication of the authority’s decision to withhold the technical offer. This is because the notification is the moment at which competitors are placed in a position to understand which documents the authority intends to disclose and which it intends to withhold from access or publication.Consequently, the appeal was deemed late, having been filed and served more than ten days after the award notification. For further reference:TAR Campania, Naples, judgment no. 3951/2025; Articles 35 and 36, Legislative Decree 36/2023.
