News · Administrative law · – 13 October 2026

Redacting a bid in a tender: trade secrets must be proven, not merely declared

TOPIC
A tenderer asking for parts of its bid to be withheld from access by competitors must prove the requirements for a trade secret; its statement alone does not bind the contracting authority.

By judgment no. 1955 published on 13 October 2026, the First Chamber of the TAR (Regional Administrative Court) for Veneto dismissed the application brought by the successful tenderer in a contract for airport cleaning services against the contracting authority’s decision to make its technical bid and its financial bid fully available to the runner-up. Art. 35, paragraph 4, point (a), of Legislative Decree no. 36/2023 (Public Contracts Code) allows access to be excluded for information in the bid that constitutes technical or trade secrets “on the basis of a reasoned and substantiated statement by the tenderer”. The court draws the concept from art. 98, paragraph 1, of Legislative Decree no. 30/2005 (Industrial Property Code) and requires its three requirements to be met cumulatively: information that is neither generally known nor readily accessible to operators in the sector, economic value deriving precisely from its secrecy, and measures reasonably adequate to keep it confidential. The burden lies on the tenderer to identify each item of information to be protected and to demonstrate that the requirements are met. The contracting authority is not required to search for secrets within the bid, nor to reopen the adversarial exchange to make up for missing evidence; brief reasons for refusing the request are sufficient where the tenderer’s statement merely asserts confidentiality without documenting it.

The judgment denies protection to the list and combination of equipment available on the market, to information systems that integrate commercial platforms without revealing algorithms or source code, to the organisational and operational arrangements for performing the service, and to solutions resulting from experience and investment. The confidentiality statement expresses the intention to oppose disclosure, but is not in itself a protective measure, and the extra points awarded to original solutions do not lighten the burden. Where the secret is not proven, the competitor need not demonstrate that access for defence purposes is indispensable, as art. 35, paragraph 5, requires, and its interest remains intact even if the bid was not checked as an abnormally low tender. The TAR applied the special procedure under art. 36, paragraph 4, to a decision to disclose adopted on a request made after the award. The Adunanza Plenaria (Plenary Assembly of the Council of State), in judgment no. 8 of 9 September 2026, instead reserves the ten-day time limit for cases where the decision on redaction accompanies the notice of the award, and brings late decisions, or decisions taken on a subsequent request, within the procedure under art. 116 of the Italian Code of Administrative Procedure (c.p.a.), with a thirty-day time limit. In the case decided, the application was timely under either reading.

IN PRACTICE
A tenderer wishing to protect parts of its bid should attach to the bid itself a statement identifying the confidential information section by section and supported by documentary evidence of the three requirements of art. 98 of Legislative Decree no. 30/2005, such as confidentiality agreements with employees and partners, internal access restrictions, IT security measures or estimates of the economic advantage linked to secrecy. If the decision to disclose accompanies the notice of the award, the application to the TAR must be served and filed within ten days of that notice (art. 36, paragraph 4, of Legislative Decree no. 36/2023); if the decision comes later, the Plenary Assembly points to the thirty-day time limit under art. 116 c.p.a. In our view, however, it is advisable to act within ten days in any event and to seek interim relief at once where the contracting authority does not undertake to wait, because outside the typical case the prohibition on early disclosure under art. 36, paragraph 5, does not apply with certainty. It is advisable for a competitor requesting access to set out in its request the grounds it intends to raise against the award, so as to make its interest for defence purposes evident.

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.

← Back to news Contact the network