Social value creation and the principle of result: a reasoning on the goal of public procurement procedures

Under the call of the sustainable development principle, the exercise of administrative power is increasingly being oriented towards (and scrutinized under) the outcome generated by the public action, rather than the procedural steps necessary to take it. The public procurement sector is progressively following this general trend, as the attention of numerous legal frameworks - including UK and Italy - to social value demonstrates. After recalling the theoretical foundations of the “goal first” approach and analyzing how the concept has been applied in the UK, in the context of the Social Value Act, the paper discusses the different way in which the same parameter has been interpreted within the Italian legal framework. It is argued that, while the UK acceptation, here named ‘organizational’, is to be embraced as it induces the public authorities (i) to carefully program the tender according to their actual need, and (ii) to verify, after the execution of the contract, the production of the intended result towards the community, the second and more ‘procedural’ acceptation, which seems to be an Italian invention, is criticized as it introduces the idea that the choices taken by the tender officials should be guided primarily by the substantial quality of the offer. Through an analysis of the case law, the principle is reconstructed to be reconciled with its theoretical bases, the normative essence of competitive tender procedures and the principle of sustainable development.