{"id":12333,"date":"2026-05-08T12:38:24","date_gmt":"2026-05-08T10:38:24","guid":{"rendered":"https:\/\/studiocassinelli.it\/en\/?p=12333"},"modified":"2026-07-29T12:39:43","modified_gmt":"2026-07-29T10:39:43","slug":"pre-contractual-liability-of-the-temporary-consortium-the-price-differential-with-the-second-ranked-bidder-does-not-constitute-recoverable-damage","status":"publish","type":"post","link":"https:\/\/studiocassinelli.it\/en\/pre-contractual-liability-of-the-temporary-consortium-the-price-differential-with-the-second-ranked-bidder-does-not-constitute-recoverable-damage\/","title":{"rendered":"Pre-contractual liability of the temporary consortium: the price differential with the second-ranked bidder does not constitute recoverable damage"},"content":{"rendered":"\n

By judgment no. 2274 of 8 May 2026, the Court of Genoa, Specialist Business Division, sitting as a panel, fully dismissed the claims \u2013 both principal and in the alternative \u2013 brought by a leading Italian company operating in the utilities sector<\/strong>, as contracting authority, against the undertakings forming part of the temporary consortium originally awarded a contract for the design and construction of a wastewater treatment plant, with a total value of approximately EUR 48 million<\/strong>. Cassinelli Studio Legale<\/strong> assisted one of the undertakings forming part of the consortium.<\/p>\n\n\n\n

The contracting authority complained that it had been forced to award the contract to the second-ranked bidder \u2013 following the revocation of the award to the consortium led by a Spanish operator, on grounds of the subsequent loss of a technical qualification requirement \u2013 and sought, as a principal claim, damages for the price differential between the two bids, amounting to approximately EUR 4.6 million<\/strong>, and, in the alternative, direct payment of the sum corresponding to the provisional bid bond which had remained unpaid following the subsequent financial collapse of the insurer providing the surety.<\/p>\n\n\n\n

On the doctrinal side, the Panel conducted a particularly refined analysis of the nature of the liability at issue, unhesitatingly classifying it as pre-contractual, on the ground \u2013 of significant systematic importance \u2013 that the qualification of the liability depends not on the type of loss claimed by the party, but on the underlying fact pleaded<\/strong>. From that premise the Court drew the consequence that the recoverable damage cannot include the so-called price differential with the second-ranked bidder, which represents the utility of the contract not concluded and therefore a positive interest falling outside the scope of the negative interest protected under pre-contractual liability, within which only wasted expenditure and lost alternative opportunities are recoverable.<\/p>\n\n\n\n

The Court further observed that the very administrative case law which, in certain instances, allows for the recovery of damages beyond the bid bond (see Consiglio di Stato, no. 7217\/2021) presupposes an act attributable to the successful bidder, whereas in the present case the loss of the requirement had been caused by a supervening change in the Spanish regime for the qualification of economic operators, capable of being classified as factum principis<\/em>. It also noted the radical failure by the contracting authority to plead its case: no indication was given of what different steps it could concretely have taken had it been promptly informed of the loss of the requirement, nor was any specific expenditure connected with the revocation documented.<\/p>\n\n\n\n

The company assisted by Cassinelli Studio Legale was represented by Nicola Cassinelli<\/strong> together with Karim Dahmouni<\/strong>.<\/p>\n","protected":false},"excerpt":{"rendered":"

By judgment no. 2274 of 8 May 2026, the Court of Genoa, Specialist Business Division, sitting as a panel, fully dismissed the claims \u2013 both principal and in the alternative \u2013 brought by a leading Italian company operating in the utilities sector, as contracting authority, against the undertakings forming part of the temporary consortium originally awarded a contract for the design and construction of a… <\/p>\n

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