The validity of tenders that incorporate criteria for the circular management of construction site materials (aggregates and excavated rock) within a public procurement contract.

The judgment in question offers very significant insights into the nature of the tender submitted by the successful bidder in a public procurement contract. Specifically – regarding the management of excavated earth and rock – the tender provided for differentiated management of the excavated material produced during the works: preliminary characterisation of the earth and rock, and then — if the analytical results had allowed for classification as a by-product pursuant to Article 184-bis of Legislative Decree 152/2006 and Presidential Decree 120/2017 — direct reuse on site for the formation of embankments and backfilling; otherwise, delivery to a recovery facility (not to a landfill). Following the appellant’s objections, the Regional Administrative Court states that: the tender is not conditional because the two scenarios do not express uncertainty regarding the commitment undertaken, but rather constitute a detailed technical response to normal operational contingencies, thereby indirectly legitimising the legal validity of tenders that incorporate criteria for the circular management of construction site materials, even if their full implementation depends on the outcome of analyses to be carried out during the execution phase.