Decision n. 11186, 27th December 2023, Council of State, sec. V, Italy
Article(s) in Directive 2014/24/EU: Art. 63
Topic: reliance on the capacities of others
Member State: IT
Court/rev. board: Council of State
1. IMPLEMENTATION / RELEVANT NATIONAL LEGISLATION
Art. 89 Public Contracts Code (legislative decree 50/2016).
2. FACTS
The case concerned the categorisation of a contract of reliance on other entities’ capacities. The contract at stake involved reliance on the experience gained by the auxiliary in carrying out a given activity. The Council of State clarified that this kind of contract is to be qualified as “experiential” reliance (“avvalimento esperienziale”), because the experience itself is part of the technical-professional requirements (as in accordance with Art. 83, para. 6, legislative decree 50/2016). Therefore, the contract falls within the technical-operational kind of reliance and should respect the its requirements, as in accordance with Art. 89 of legislative decree 50/2016. Under this provision, for the purposes of proving the reliance on capacities of others, the tenderer shall “also attach to the request of participation (…) the contract by virtue of which the auxiliary undertaking commits itself towards the tenderer in order to make the requirements and necessary resources available for the entire duration of the contract”. Moreover, the contract of reliance shall contain “the specification of the requirements provided and of the resources made available by the auxiliary undertaking”. However, concerning this latter specification, the regional administrative tribunal of Piedmont confirmed, in a previous case (TAR Piemonte, sez. II, 28 November 209, n. 1188), that the operativeness of the obligation depends on whether the reliance assumes a technical-operational nature, or is a reliance “of guarantee” (avvalimento “di garanzia”): for the first type, there is always a need to define specifically the resources made available by the auxiliary, in the sense that the contractors are required to indicate precisely the company resources and personnel that the auxiliary provides to perform the contract; whereas for the reliance “of guarantee”, as the auxiliary entity merely makes available its added value, it is consequently not necessary for the declaration constituting the contractual commitment to refer specific assets or material indices capable of expressing a certain and determined asset value, as it is sufficient that the declaration shows the contractual commitment to make available to the tenderer – for instance – the patrimony of experience, thus guaranteeing a certain reliability and a concrete additional responsibility (Consiglio di Stato, sez. V, 2 September 2019, n. 6066).
In this case, the municipality had awarded the final and executive design services for the villages’ recovery to a temporary association. This latter had employed reliance on the capacities of others. The second-ranked economic operator asked for a re-examination on the argument that the winner lacked the necessary requirements laid down in the tender documents, claiming, specifically, that the contracts of reliance presented by the winner were null and void because they were too vague and general. The contracting authority confirmed its first decision and therefore the second-ranked operator challenged it before the regional administrative tribunal. On the assumption that, at stake, was the technical-operational reliance on the capacities of others and based on the above-mentioned requirements, the court had eventually found that the contracts of reliance presented by the winner involved deficiencies, as they contained no indication of the actual resources made available by the auxiliaries.
The winner challenged this decision, arguing that the regional administrative court had mistakenly characterised the reliance as technical-operational, thus resulting in the need to indicate, in the relevant contract, the concrete provision of specific means and resources for the performance of the contract.
3. JUDGMENT
The Council of State confirmed the first instance judge’s position, highlighting that the procurement documents, when referring to the technical and professional capacity requirements, required the execution of engineering and architecture services related to works of specific categories, with specific features. As correctly held by the court of first instance, this was to be considered as a technical-operational reliance, since the tenderer was intended to rely, in the context of the provision of the technical and professional capacity requirements, on the experience gained (by the auxiliary) in carrying out a given activity. Specifically, this was to be considered as “experiential” reliance, i.e., a form of operational reliance that concerns relevant academic and professional qualifications and experience.
Since the contracting authority needs to evaluate the suitability of the contract of reliance in a a priori perspective of the verification of the requirements for the participation in the procedure, it is clear that the contract must provide, in clear and unambiguous terms, the specific commitment or promise to perform directly.
Link to the original decision: https://portali.giustizia-amministrativa.it/portale/pages/istituzionale/visualizza/?nodeRef=&schema=cds&nrg=202308816&nomeFile=202311186_11.html&subDir=Provvedimenti
