Consiglio di Stato ruling 6702/2026: RTI, abnormally low bid and subcontracting

In brief: with judgment no. 6702 of 31 August 2026, the Fifth Section of the Consiglio di Stato (Italy's highest administrative court) upheld an award to a temporary grouping of companies (RTI, raggruppamento temporaneo di imprese), setting out several principles useful to those who bid in tenders: the internal split of services within an RTI can change if the tender notice does not bind it; the check on abnormally low bids looks at the offer as a whole; and a self-employed worker without a business organisation is not a subcontractor. The administrative justice portal flagged it among its featured decisions.

What was the tender?

The tender, launched by the Department for Equal Opportunities of the Presidency of the Council of Ministers, concerned the free national support service for women victims of violence and stalking linked to the public utility number 1522, divided into five components (assistance, monitoring and statistics, technology infrastructure, communication and website, coordination). The award to a grouping of third-sector bodies had been annulled by the TAR Lazio with judgment no. 18277 of 22 October 2025. The Consiglio di Stato upheld the grouping's appeal, rejected the competitor's cross-appeal and, reforming the decision, rejected the first-instance appeal.

What principles does the judgment set out?

Topic	Principle, as reported in the headnotes
Service shares within the RTI	Redistributing the parts of the services among the companies of the grouping during the tender is not grounds for exclusion if the tender notice does not require a match between requirements and execution shares and all companies are qualified.
Justifications for abnormally low bids	Specifying, in the abnormally-low-bid procedure, how services are split among the RTI's companies concerns the allocation of costs and does not modify the offer, unless it alters its substantial content.
Congruity check	The assessment is global and summary: individual cost items may be reshaped, but not the total amount nor the items the tender requires to be stated.
Deadline for justifications	The fifteen-day deadline in art. 110, para. 2, of Legislative Decree 36/2023 is ordinatory (non-mandatory): exceeding it does not cause the contracting authority to lapse nor leads to exclusion.
Execution requirements	They count in the execution phase; they become participation requirements only if the tender expressly classifies them as essential elements of the offer or conditions for admission.
Ambiguous tender clauses	They are interpreted literally and systematically; in case of doubt about requirements or grounds for exclusion, the interpretation favouring participation prevails.
Subcontracting or contratto d'opera (contract for work)	Under art. 119, para. 3, of Legislative Decree 36/2023, the activity of a self-employed worker without an autonomous business organisation is not subcontracting, if it is ancillary or instrumental to the main services.
Separation between technical and economic offer	It is not absolute: a bidder readmitted by the court may be assessed even after the economic offers have been opened, without redoing the whole tender.

Why does the distinction between subcontracting and self-employment matter?

In the case decided, the tender prohibited subcontracting, and the TAR had classified the services of a collaborator of the grouping as subcontracting. The Consiglio di Stato held the opposite: the subcontractor directly performs a part of the contract, replacing the main contractor, whereas the self-employed worker renders the service to the awardee, which incorporates it into its own organisation. According to the judgment, the distinction must be made case by case, looking at how much the collaborator's organisation of means matters compared with their personal expertise.

What to do before joining an RTI or assigning part of the work

• Check in the tender whether the shares are binding: the judgment saves the internal redistribution only because the tender did not require a match between requirements and shares, nor who had to perform what.
• Prepare abnormally-low-bid justifications per company: keep the allocation of costs between the lead company and the member companies distinct, without touching the total amount and the items the tender requires.
• Classify your contractors correctly: if the tender limits or prohibits subcontracting, document when a collaborator is a professional or a self-employed worker without a business organisation, and when instead it is a company performing part of the contract.
• Check partners before signing the commitment to form the grouping: within an RTI the companies are jointly and severally liable towards the contracting authority, as the judgment recalls, citing the public contracts code.

Before joining a grouping or assigning a subcontract, the protests and insolvency proceedings check (€5.90) shows you, with source and date, whether the partner company has open proceedings. With insolvency proceedings plus beneficial owner (€14.90) you also see who stands behind the company.

Sources

• Giustizia amministrativa, «Division of services within RTIs, allocation of costs, participation requirements, abnormally-low-bid check, subcontracting, separation between technical and economic offer», headnotes of Consiglio di Stato judgment, Section V, 31 August 2026, no. 6702, accessed 30/10/2026
• Consiglio di Stato, Section V, judgment of 31 August 2026, no. 6702 (appeal no. 8498/2025), full text, accessed 30/10/2026