News · Administrative law · – October 2026

Labour costs and abnormally low tenders: CCNL grades must fit the specifications, a flawed check is re-run

TOPIC
Council of State, Section V, 5 October 2026, No 7316: a cut in labour costs cannot rest on CCNL grades incompatible with the specifications; a flawed low-tender check is repeated, without substitution.

Art. 41, paragraph 14, of Legislative Decree (d.lgs.) No 36 of 31 March 2023, the Public Contracts Code, requires the contracting authority to set out in the tender documents the labour costs, determined under paragraph 13 on the basis of the average labour cost in the ministerial tables, and to exclude them from the amount subject to price reduction; the economic operator remains free to show that the overall reduction derives from a more efficient business organisation. The tenderer must state its own labour costs on pain of exclusion (art. 108, paragraph 9), and these are among the elements from which an abnormally low tender may emerge (art. 110, paragraph 1). No explanations are admitted in relation to mandatory minimum wage treatment (art. 110, paragraph 4, letter a), and the tender is excluded if staff costs fall below the minimum wages set out in the tables of art. 41, paragraph 13 (art. 110, paragraph 5, letter d). The Council of State (Consiglio di Stato), Section V, ruled on this framework in judgment No 7316 of 5 October 2026. The tender, a restricted procedure for a contact centre service for a utility company, had a base value of EUR 3.6 million including renewal, estimated labour costs of EUR 1.9 million and the national collective agreement (CCNL) for the telecommunications sector specified in the tender rules (disciplinare). The successful tenderer had placed eleven of its thirty-four telephone operators in grade II, although the technical specifications required significant experience in customer care for utility companies from the initial selection, and the CCNL allows grade II only for staff with no experience in the role and for no more than twelve months. The Regional Administrative Court (TAR) for Lazio, Section II-ter, in judgment No 170 of 7 January 2026, had annulled the award, found the ground for exclusion in art. 110, paragraph 5, letter d), and ordered the runner-up to take over the contract, after declaring the contract ineffective.

The Council of State upheld the first-instance reading on job grading. The option of reducing the estimated labour cost by proving a more efficient organisation must be reconciled with compliance with the lex specialis (the tender rules), which also binds the contracting authority itself: the reduction cannot rest on contractual grades incompatible with the experience and autonomy that the specifications require of the staff. Settled principles stand: the assessment covers the tender as a whole, not its individual items; the ministerial tables are an indicative parameter, and departing from them does not in itself entail a breach of minimum wages or automatic exclusion; in its explanations the tenderer may reallocate the internal items of labour cost, such as grades, average hourly cost and total hours, provided that the overall amount of the financial offer and its substantive structure remain unchanged. The operative part was, however, reversed. The applicant had not alleged a breach of minimum wages, only a departure from the average cost in the tables; once a flaw in the investigation is found, the court cannot exclude the successful tenderer or order substitution, because it would be ruling on powers the administration has not yet exercised: technical discretion is exhausted only by a renewed and comprehensive check (art. 34, paragraph 2, of the Code of Administrative Procedure, c.p.a.). The award is annulled solely for the purpose of repeating the sub-procedure: the contracting authority will verify, after hearing the tenderer, whether the cost remains sound with a different internal allocation, while respecting the overall labour cost stated and the technical offer, which limits changes to total hours. On the procedural side, grounds absorbed at first instance and not expressly re-submitted in the statement of appearance are deemed waived (art. 101, paragraph 2, c.p.a.); referring to them in the statement of facts or in the defence is not enough. In our view, after this judgment a reduction based on job grades holds only if each grade declared matches the requirements set for that specific role.

IN PRACTICE
Before bidding, the operator checks, role by role, the grade against the experience and autonomy requirements of the specifications and the job descriptions of the CCNL named in the tender documents, and keeps the schedule linking grade, hourly cost and total hours to the labour cost stated under art. 108, paragraph 9. In its explanations it documents how each item derives from its own organisation and that minimum wages are met, since no explanations are admitted on them, keeping total hours consistent with the technical offer. A contracting authority reopening the check after annulment requests explanations in writing, with a time limit of no more than fifteen days (art. 110, paragraph 2), and closes the sub-procedure within the binding effect of the judgment. A competitor who, having obtained the successful tenderer’s explanations through access to documents, challenges the finding that the tender is sound must state the specific causes of unsustainability and distinguish a departure from the tables from a breach of minimum wages; if it resists the appeal, it re-submits the absorbed grounds, identifying them expressly in the statement of appearance filed within the time limit for entering an appearance.

Summary note by the CommercialistiAvvocati network, based on specialised legal and practice sources. The text does not reproduce original contributions and does not constitute professional advice.

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