The total failure to indicate the CAM in the design and tender documentation results, in general, in ahypothesis of severe deficiency in the identification of essential data for the formulation of the offer, a hypothesis for which theimmediate challenge to the tender notice.
The sentence of Council of Sato, Sec. V, 4 February 2026, n. 919 reinforces the jurisprudential orientation established already in 2025 on cases of total omission or illegitimate inclusion of CAMs in the tender documentation.
The decision arises from a concession for restoration and cleaning of roads after accidents banned by the Province of Siena. The second place contests, among other things, that the competition law did not implement it at all the CAMs deemed applicable (referred to D.M. 23/06/2022 on the cleaning/sweeping sector)
The TAR had considered the complaint also possible only after the outcome; the Council of State reverses the perspective and states that the total omission of CAMs in the lex specialis integrates one severe deficiency on essential supply data and triggers for economic operators the burden of immediately appealing the notice (under penalty of inadmissibility).
The three typical cases of sentence 6651/2025
The crucial reference is to ruling 6651/2025 which, putting a firm point on the issue, outlined three typical cases:
- total failure to indicate CAMs in the project and tender documentation it generally results in a hypothesis of serious deficiency in the identification of essential data for the formulation of the offer, a hypothesis for which the immediate challenge of the tender notice is required;
- mere reference to the decree adopting the CAMs may, depending on the type of service, work or supply and the object of the contract to be stipulated, result in a serious deficiency in the indication of essential data for the formulation of the offer;
- indication of CAM susceptible to censorship because it is not compliant the relevant adoption decree must, however, be investigated on a case-by-case basis and determines the obligation to immediately challenge the tender only if there is proof, provided by the economic operator concerned, that the clauses have the potential to preclude any useful participation in the tender, for example because they impose burdens that are manifestly incomprehensible or completely disproportionate to the contents of the procedure or even because they make participation unreasonably difficult or even impossible.
Therefore, the total pre-termination of the CAM within the tender notice makes the offer impossible to formulate and therefore burdens the burden of immediately challenging the tender notice.
In the case of inclusion of CAMs in a manner that does not comply with the law due to incorrect or incomplete formulations, the award must be made in order to challenge the tender notice (except, obviously, for the demonstration that the formulation of the offer would in any case be impossible); In these cases, generally speaking, there would be no burden of immediate appeal.
Conclusions
The ruling qualifies CAMs as environmental requirements that impact the entire cycle (design-execution), not as ancillary fulfillment. Operationally, this pushes contracting authorities to translate the CAM into execution rules and/or requirements and/or criteria, avoid empty references, at least explain the relevant operational standards and the required tests, distinguish well between minimum requirements and rewards (avoid “rewarding” what is already mandatory).
Economic operators are responsible for the preliminary verification of the presence and correct transposition of the minimum environmental criteria and the burden of immediately challenging the tender.
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date: 2026-02-07 07:47:00
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