Public Administration Algorithms: Council of State on Full Transparency of the Black Box

1. The facts

   The story originates from an electronic procedure for the awarding of public works called on behalf of a local water management company. According to reports from publications such as Giustizia Amministrativa and Lavoropubblico.it, a participating company challenged the tender result, but the competent T.A.R., in the first instance, declared the appeal inadmissible because it was filed after the thirty-day deadline from the notification of the award. The appellant argued, however, that the digital platform had not immediately made available either the minutes or, above all, the logic of the scores calculated by the algorithm. The case reached the Council of State on appeal. The central issue concerned the exact moment when the deadline for filing an appeal begins: whether from the mere communication of the outcome or only from the moment the company can actually understand how the algorithm performed the calculations. The company complained that the administration had used the so-called software black box to hide opaque evaluation criteria, making an effective defense within the standard legal timeframes virtually impossible.

2. 

   The rules at play

   The regulatory framework revolves around Legislative Decree 36/2023, the so-called new Public Contracts Code. Articles 35 and 90 govern access and digitalization in automated procedures, imposing transparency, accessibility, and the non-exclusivity of the algorithmic decision: the machine can assist, but it cannot entirely replace reviewable human evaluation. Article 36 obliges the contracting authority to make all acts and algorithmic data available on the digital platform at the same time the award is communicated. In parallel, Article 120 of the Code of Administrative Procedure comes into play, setting a thirty-day deadline for challenging acts. The function of these rules is to guarantee the right of defense enshrined in Article 24 of the Constitution and the principle of good administration provided for by Article 97. If the PA does not guarantee full knowledge of the software logic, the consequence is the postponement of the deadline to appeal, as the citizen cannot be penalized for the opacity of public IT systems.

3. What the case law says

   The orientation of administrative judges is now established in defining the algorithm as a true computer-based administrative act. Jurisprudence has clarified that automation must respect the standards of legality and impartiality, excluding the possibility of software operating as a gray area beyond the court's control. It has been established that the principle of transparency is not limited to providing the source code, often protected by trade secrets, but requires explaining the underlying legal-mathematical logic. The judges have repeatedly stressed that human intervention must be effective and not a mere formal ratification of the computer-generated result. In particular, the principle has emerged that digital transparency must be full and immediate: if the e-procurement platform does not allow the extraction of data related to the calculation logic, the administrative action is flawed. This approach ensures that digitalization simplifies processes without eroding the procedural protections of participants in public tenders.

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8. What it teaches professionals

   1. Platform monitoring: lawyers must promptly document, including through technical reports or digital evidence collection, the absence of documents regarding algorithmic logic at the time of outcome publication.
   2. Immediate access request: one should immediately request clarification in natural language of the software logic to crystallize the PA's delay.
   3. Challenging the black box: it is essential to plead the violation of the principle of non-exclusivity if it emerges that the public official delegated the entire evaluation to the automated system without effective and reviewable human control.

References: D.Lgs. 36/2023D.Lgs. 104/2010Art. 24 CostituzioneArt. 97 Costituzione

Editorial oversight: Avv. Federico Papa·ICAMUpdated 21 October 2026Content drafted with AI support and subject to editorial source checks. Despite these controls, inaccuracies may remain: reports and rectification requests are welcome. Report a correction