Il precontenzioso nei contratti pubblici tra logica preventiva e tutela oggettiva

The paper analyzes the current two pre-litigation remedies in public contracts: the ANAC pre-litigation opinion (so called parere di precontenzioso) following the request of the party, and the warning opinion (so called parere-diffida), again adopted by ANAC, but on its own initiative. The remedies underline the ambivalent purpose of the legislator: on one hand, preventing intersubjective conflicts and, on the other, objectively protecting legality in tender procedures. The anticipatory logic of protection characterizes not only the pre-litigation remedies, but also the judicial remedy, which currently provides the immediate appeal of the admission measures. The anticipatory logic constitutes a reaction to the pathological dysfunctions of public tenders disputes in the past. The emphasis of the interest in the correct execution of tendering procedures leads to an objective twisting of the remedies in question. As for the proper functioning of the remedies, there is a lack of legislation in defining the conditions to make them effective. This could generates the paradoxical risk of increasing, instead of decreasing, the disputes.