On 4 August 2026 the National Anti-Corruption Authority (ANAC) published the explanatory report (relazione illustrativa) on standard tender document (bando tipo) No 2/2026 for the award of architecture and engineering services contracts of a value equal to or above the European thresholds, approved by Decision No 153 of 15 April 2026 and, according to the Authority, “which became effective and binding as of 30 May last” (our translation) (ANAC). The notice appeared in Official Gazette (Gazzetta Ufficiale) No 111 of 15 May 2026, together with that of Decision No 148 of 1 April 2026, which updated standard tender document No 1 for services and supplies (ANAC). Both models, in paragraph 18.1, require contracting authorities (stazioni appaltanti) to determine the higher score (maggior punteggio) for undertakings holding gender equality certification. In 2026 the Authority also censured tender specifications (disciplinare di gara) that lacked that score, and the Council of State (Consiglio di Stato) clarified the conditions under which the certification justifies it.
Article 108 of the Public Contracts Code: the higher score after the corrective decree
The last sentence of Article 108(7) of Legislative Decree No 36 of 31 March 2023 (Public Contracts Code, codice dei contratti pubblici) provides: “In order to promote gender equality, contracting authorities shall provide, in contract notices, notices and invitations, for the higher score to be awarded to undertakings for the adoption of policies aimed at achieving gender equality evidenced by possession of the gender equality certification” referred to in Article 46-bis of the Equal Opportunities Code (codice delle pari opportunità), Legislative Decree No 198 of 11 April 2006 (Normattiva). The corrective decree (correttivo), Legislative Decree No 209 of 31 December 2024, amended paragraph 7 through Article 36, adding the sentence on construction products falling within an emissions trading system and adjusting the cross-reference in the following sentence; the sentence on gender equality remained unchanged (Normattiva).
For reward criteria (criteri premiali) in favour of small and medium-sized enterprises and of territorial proximity, the third sentence provides that procedures “may provide for” such criteria; for the certification the last sentence uses the indicative “shall provide”. The difference between the two verbs separates the optional reward criteria from the only reward criterion that the paragraph makes mandatory. The provision does not, however, establish how much weight the score must carry or how it is to be graduated.
The 2026 ANAC standard tender documents: the clause on certification
In the two models the rule is translated into a note on the award criteria for the technical tender (criteri di valutazione dell’offerta tecnica): the contracting authority “shall determine the higher score to be awarded to undertakings that certify possession of the gender equality certification”, with a reference to the Communication of the President of ANAC of 30 November 2022 (ANAC; ANAC).
In pre-litigation Decision (delibera di precontenzioso) No 193 of 25 May 2026 the Authority recalled, citing the Council of State, that the standard tender document constitutes a “parameter of the administrative action of contracting authorities, in the sense that the latter are required to conform to it, retaining a limited discretionary power of derogation” (ANAC). Tender specifications that omit the criterion depart, at one and the same time, from the law and from the model to which the contracting authority must conform.
Tender specifications without the score: ANAC supervision and the response of the Regional Administrative Court for Piedmont
By Decision No 106 of 24 March 2026 the Authority examined a European tender procedure for works supervision and safety coordination on an urban regeneration project, launched on 6 August 2025 (ANAC). The lex specialis awarded no score for the certification. The contracting authority had described the omission as merely formal, observing that the successful tenderers (aggiudicatari) for both lots were certified and invoking a non-uniform approach, “given the absence of specific provisions on the matter in the ANAC Standard Tender Document, consulted when drafting the tender documents”.
The Authority replied that the obligation derives from Article 108(7), as already stated in the 2022 Communication and in Decision No 145/2025, and that the same provision appeared in paragraph 18.1 of standard tender document No 1 of 2025 and in standard tender document No 2, then under consultation. It therefore declared the tender specifications non-compliant, describing the shortcomings found, taken as a whole, as “serious”. The fact that the successful tenderers held the certification did not make compliant the tender specifications that omitted the criterion.
Before the courts the outcome was different: by judgment No 984 of 30 April 2026 the Regional Administrative Court (TAR) for Piedmont dismissed the complaint of an undertaking, which declared itself certified, concerning the failure to provide for the criterion, because the other operators in the ranking (graduatoria), and in particular the successful tenderer, were also certified: the omission “did not affect the ranking of the tender procedure”, and the principle of the preservation of legal acts and the principle of result (principio del risultato) under Article 1 of the Code militate against the merits of the complaint (Administrative justice portal (Giustizia amministrativa)). In our view the court measures the omission against the benefit the applicant would derive from it, the Authority against the compliance of the tender documents (atti di gara).
The certification eligible for the score: scope and accreditation in judgment No 1400/2026
By judgment No 1400 of 20 February 2026 the Fifth Section of the Council of State dismissed the appeal against judgment No 12991/2025 of the Regional Administrative Court for Lazio, Second Section, concerning a Consip tender whose contract specifications (capitolato) rewarded the certification (Administrative justice portal (Giustizia amministrativa)). Three statements are relevant to tender procedures.
The first concerns scope: the certification “must indeed cover the entire business structure of the undertaking audited, and not only a part of it”. The second concerns the body: since conformity assessment bodies are not accredited for an entire sector but for a specific scope of application, the body issuing the certification must have a scope of accreditation covering “specifically the conformity assessment scheme constituted by UNI/PdR 125:2022”. For the Court, the Ministerial Decree of 29 April 2022 remains indispensable even where the tender rules do not refer to it, and a certificate issued by a body lacking that accreditation is not equivalent. Without accreditation specific to the scheme of the reference practice (prassi di riferimento), the certification does not confer entitlement to the score. This is the verification of the accredited scheme that we also recommended for the certification of persons, in commenting on the new edition of ISO/IEC 17024.
The third concerns reliance on the capacities of other entities (avvalimento) for reward purposes. The Court ruled out, as the court of first instance had already done, the replacement of the auxiliary undertaking (impresa ausiliaria) whose certification had proved unsuitable: between the auxiliary undertaking and the score there is a functional link, simul stabunt, simul cadent, and the certification concerns “intra-company/employer working relationships and processes”, affecting the objective content of the tender. Whoever relies on another’s certification bears the risk of inadequate accreditation of the body that issued it, in accordance with the principle of self-responsibility (principio di autoresponsabilità) invoked by the Court.
Beyond the score: tender guarantee, employment commitments and reward measures
Article 106(8) allows the tender guarantee (garanzia provvisoria) to be reduced by up to 20 per cent where the operator holds certifications or labels “identified, among those provided for in Annex II.13, in the initial tender documents, which also set the amount of the reduction” (Normattiva). Annex II.13 includes UNI/PdR 125, “Certification of the management system for gender equality within organisations” (Normattiva). Unlike the score, the reduction of the guarantee linked to the certification depends on a choice of the contracting authority. In below-threshold contracts (affidamenti sotto soglia) such reductions do not apply (Article 53(4-bis)) (Normattiva).
As for commitments, Article 102(1)(c) requires operators to be asked to guarantee “generational, gender and labour inclusion equal opportunities”, and paragraph 2 limits the verification of reliability to the tender of the successful tenderer (Normattiva). Article 57, as replaced by the corrective decree, requires social clauses (clausole sociali) as necessary requirements of the tender for works and services “other than those of an intellectual nature” and refers to Annex II.3 for the reward mechanisms (Normattiva). Annex II.3, Article 1(4), makes it a necessary requirement to undertake to reserve for youth employment and for female employment a share of at least 30 per cent of new hires, subject to the reasoned derogation in paragraph 7; paragraph 5(d) allows an additional score for those who have adopted measures for equal opportunities, also taking into account the ratio between men and women in hiring, in pay levels and in senior appointments (Normattiva).
Critical aspects: weight of the score, cumulation of reward criteria and verification
The first aspect is weight: neither the provision nor the note to paragraph 18.1 indicates a minimum weight. In our view a score that is mandatory but of negligible size respects the letter of the provision and weakens its function, which ANAC, citing the administrative courts, identifies as rewarding the competitor “that has already put in place the concrete measures”. We consider it appropriate for the decision to contract (determina a contrarre) to state the reasons for its weight.
The second aspect is cumulation. The certification and the measure under point (d) of Annex II.3 may give value to the same organisational facts, and the provisions examined do not regulate how the two interact. In our view it is advisable to reserve for point (d) the elements that the certification does not attest, such as the three-year data on hiring and pay levels; as regards the latter, the European rules on pay transparency, transposed by a decree in force since 7 June 2026, impose information obligations on employers.
The third aspect is verification. After judgment No 1400 the contracting authority must check the scope of accreditation of the body and the scope of the certificate; clarifications issued during the procedure have, for the Court, “merely declaratory” value. Finally, in the note to paragraph 18.1 of the two models, as also reproduced in Decision No 106, the reference to Article 46-bis indicates “Legislative Decree No 196/2006”, whereas the Equal Opportunities Code is Legislative Decree No 198/2006: those reproducing the model should correct the reference.
Conclusions
The obligation of the higher score has remained intact after the corrective decree, and the 2026 standard tender documents, to which contracting authorities must conform, reproduce it in paragraph 18.1. It is for the contracting authority to set its weight, to define rules of proof consistent with judgment No 1400 and to decide in the initial tender documents on the reduction of the guarantee; it is for the operator to verify the specific accreditation of the body, including when relying on the capacities of other entities. There is no indication as to the minimum weight of the score, and judicial protection meets the limit of the applicant’s concrete interest: ANAC supervision remains the principal safeguard of the obligation.
Author: Valentina Grazia Sapuppo
