730.100
LCPUBBLMP
CH-TI
CH-TI
Art. 38 LCPubb Legge sulle commesse pubbliche (LCPubb)
LCPubb
Art. 38 LCPubb
1 Il ricorso è proponibile contro
a) le violazioni di diritto, compreso l’abuso e l’eccesso del potere di apprezzamento;
b) l’accertamento errato o incompleto di fatti giuridicamente rilevanti.
2 Non può essere addotto il motivo dell’inadeguatezza.
3 Contro le decisioni di aggiudicazione non sono proponibili eccezioni che non sono state sollevate mediante impugnazione del bando.
Decisioni giudiziarie che applicano questa disposizione (156)
52.2024.285 · ti (art. 38 cpv. 1 lett. a LCPubb)
Cantonal School Access Control Tender Annulled Due to Unfair Testing Requirements
The appeal was granted because the setting of the tender violated the principle of equal treatment among bidders, which is related to the abuse of discretionary power cited under this article.
52.2023.385 · ti (art. 38 cpv. 1 lett. a LCPubb)
Contract Award Challenge Based on Invalidated References
Cited in the reasoning (consid. 3) as the legal basis for review concerning the misuse of discretionary power, which implies it underlies the decision to partially uphold the appeal regarding the evaluation of references.
52.2023.391 · ti (art. 38 cpv. 1 lett. a LCPubb)
Appeal Against Direct Award of Paving Contract Due to Director's Missing Professional Qualification
The court partially upheld the appeal and annulled the challenged decision because it violated the law (implicitly due to insufficient substantiation regarding eligibility).
52.2023.94 · ti (art. 38 cpv. 1 lett. a LCPubb)
Public Tender Challenge: Eligibility Criteria and Conflict of Interest Regarding Photovoltaic Systems Contract
This provision concerning the scope of judicial review of the contracting authority's discretionary margin was cited during the analysis of the remaining objection (choice of designer), although the final order itself rejected the appeal on this ground.
52.2022.406 · ti (art. 38 cpv. 2 LCPubb)
Challenger to Direct Contracting Award for Specialized Planning Services Rejected
The court recognized the contracting authority's margin of appreciation in evaluating specialized service offers, justifying the dismissal of the appeal.
52.2022.200 · ti (art. 38 cpv. 1 LCPubb)
Challenger v. Museum Surveillance Contract Award: Inconsistent Evaluation Criteria
Cited as the rule governing the scope of review by the administrative court regarding violations of law or abuse of discretion in public procurement matters.
52.2022.200 · ti (art. 38 cpv. 1 lett. a LCPubb)
Challenger v. Museum Surveillance Contract Award: Inconsistent Evaluation Criteria
Cited in relation to the limited scope of review regarding the discretion in evaluating company references.
52.2021.314 · ti (Art. 38 cpv. 1 LCPubb)
Challenge to Parking Lot Contract Award Based on Bid Evaluation Errors
Cited in the reasoning to establish the scope of review concerning the violation of law, abuse of discretion, and incorrect factual findings, which is foundational for examining the merits of the appeal.
52.2021.257 · ti (art. 38 cpv. 1 LCPubb)
Cleaning Services Contract Award Annulled Over Arithmetic and Time Estimate Discrepancies
Cited to define the scope of judicial review regarding violations of law, abuse, or excess of discretionary power in public procurement matters (part of the legal reasoning).
52.2020.365 · ti (art. 38 cpv. 1 lett. a LCPubb)
Cantonal Police Vehicle Recovery Tender Challenge
Although cited in the reasoning section (2.), it is the substantive provision against which the appeal was judged, concerning the review of the discretion margin of the contracting authority.
52.2019.595 · ti (art. 38 cpv. 1 lett. a LCPubb)
Bidder Exclusion Over Commercial Register Wording Overturned Due to Excessive Formalism
Main ground for accepting the appeal, as the exclusion decision violated this provision (by applying excessive formalism).
52.2019.585 · ti (art. 38 cpv. 1 LCPubb)
Municipality Contract Award Overturned for Insufficient Reference Justification
Cited in the reasoning supporting the grounds for appeal against violations of law and abuse of discretion, which justifies the annulment in order 1.1.
52.2019.284 · ti (Art. 38 cpv. 1 lett. a LCPubb)
Scaffolding Bid Exclusion Overturned Due to Hyphenated Pricing
Although cited in the reasoning, this article defining the scope of review (non-violation of law) is used implicitly to justify the acceptance of the appeal against the exclusion.
52.2018.600 · ti (art. 38 cpv. 1 LCPubb)
Public Contract Award Challenged Over Unmet Reference Requirements and Equal Treatment Breach
The appeal was partially granted, annulling the contested resolution as contrary to law.
52.2019.47 · ti (Art. 38 cpv. 1 LCPubb)
Cantonal Road Maintenance Contract Award Challenge Upheld on Evaluation Score Subjectivity
Cited as the general basis for appealability against violations of law, including abuse of discretion, in public procurement matters.