Access to Documents without Request. Consideration on the New (Substantial and Procedural) Italian Discipline on Access to Tender Documents

This article delves into the recent Italian legislative changes concerning access to public contract documents, primarily codified in Articles 35 and 36 of the new code. While Article 35 largely mirrors previous legislation, it introduces noteworthy advancements such as the inclusion of civic access and the transition to mandatory electronic access via digital procurement platforms. However, the crux of the legislative shift is encapsulated in Article 36, which introduces a groundbreaking “access without request” model. This model signifies a move from reactive transparency –dependent on formal requests– to a proactive transparency framework, where tender documents are made available automatically. Despite the intentions to enhance transparency and reduce administrative delays, the new provisions raise several critical concerns. These include potential overexposure of tender documents, which could lead to an increase in frivolous litigation and competitive exploitation, as well as procedural complexities and potential conflicts with EU confidentiality standards. Furthermore, the imposition of new procedural norms and the introduction of sanctions for misuse of blackout requests pose additional challenges. The article concludes that while the reforms are well-intentioned, they require significant adjustments to address the identified substantial and procedural issues effectively.