Direct awards following a market consultation: failure to invite must be justified

The rules governing direct awards remain a particularly sensitive area for public authorities, especially where they are preceded by market consultations or expressions of interest.

A recent ruling by the Regional Administrative Court (TAR) of Calabria (Judgment No. 74/2026) clarifies the limits of administrative discretion in simplified procurement procedures. The caseOn 9 September 2025, a municipality in Calabria published a prior market consultation notice, as a preliminary step to launching a negotiated procedure (Article 50(b) of Legislative Decree No. 36/2023), for the award of a school catering service covering nursery, primary and lower secondary schools.Four economic operators responded to the notice. However, one of them—without any explanation—was not subsequently invited to submit a tender.The excluded operator challenged the award decision, and the claim was upheld on the following grounds. Grounds for the decisionArticle 50, read in conjunction with Annex I.1 of Legislative Decree No. 36/2023, provides that in the case of a direct award (i.e. awarding a contract without a formal tender procedure), the contracting authority retains discretion in selecting the contractor, even where several economic operators have been consulted in advance.However, this discretion is not unfettered. It must comply with the general principles set out in Law No. 241/1990, including transparency, publicity, and—crucially—the obligation to state reasons for administrative decisions, a principle also rooted in constitutional law.It follows that a direct award which fails to explain why an operator, despite having expressed interest, was not invited to submit a bid is unlawful, as it breaches the duty to provide reasons established under Law No. 241/1990. For further details:- TAR Calabria, Judgment No. 74/2026;- Article 50 and Annex I.1 of Legislative Decree No. 36/2023;- Articles 1 et seq., Law No. 241/1990.