Decision n. 119, 3rd January 2024, Council of State, sec. V, Italy
Article(s) in Directive 2014/24/EU: Art. 63
Topic: Contract of reliance on the capacities of other entities - interpretation of the contract
Member State: IT
Court/rev. board: Council of State
1. IMPLEMENTATION / RELEVANT NATIONAL LEGISLATION
Art. 45, para. 1, letter c), Art. 89, Legislative Decree n. 50/2016 (former Public Contracts Code).
2. FACTS
This case concerned the procurement through negotiated procedure of a framework contract for works related a measure aimed at reducing the hydraulic risk on a local river. The contracting authority drew lots for 10 economic operators who had already been selected at the pre-qualification stage. The winning temporary association lacked a required certificate and thus intended to satisfy such requirement by means of contracts of reliance on the capacities of others. The second-ranked economic operator challenged the award measure in front of the first instance Court on the grounds of nullity of the contracts of reliance presented by the components of the winning temporary association, because it considered them to be too vague and insufficient. In particular, the applicant claimed that the auxiliary undertaking’s provision of solely three human resources was insufficient and unsuitable for fulfilling effectively the contract of reliance. It also argued that the contracts of reliance provided generic and indeterminate indications on the personnel to be made available, and consequently it was not possible to understand which human resources were concretely put at disposal of the tenderer.
The first instance Court emphasized the presence, in the contracts of reliance, of clauses of assumption of liability by the auxiliaries towards the contracting authority. It also stated that the contracts of reliance were not generic: they included a precise listing of the means and human resources provided to the tenderers. Therefore, the action was dismissed, and the applicant appealed to the Council of State.
3. JUDGMENT
On this occasion, the Council of State held that control as to the essential elements of the so-called operational reliance contract must be carried out based on the general rules on contractual hermeneutics and, in particular, according to the Civil Code’s canons of overall interpretation and in accordance with good faith (Arts. 1363 and 1367 of the Italian Civil Code). The Council of State shared the first instance Court’s position, which valued the overall interpretation of the contract of reliance on capacities of others according to above-mentioned elements (in line with the previous caselaw, Council of State, section V, 30 January 2019, n. 755). According to the first instance Court, in fact, all clauses of a contract must be taken into consideration in order to understand whether or not the parties wished to comply with the typical model of the contract of reliance on the capacities of others. This implies joint and several liability towards the contracting authority, with the consequent validity of the contract following such positive finding: “Such a correct hermeneutic operation confirms that, in this case, the common intention of the parties was to achieve the typical effects of the contracts of reliance on the capacities of others”, as envisaged in the Public Contracts Code.
Consequently, the Council of State clarified that the contract of reliance does not need to necessarily go as far as, for instance, the strict qualification of the means of work, the exact indication of the qualifications of the personnel made available, etc. However, the contract must at least allow for “the identification of the exact operations that the auxiliary undertaking will perform, either directly or relying on the auxiliaries, and the parameters to which the resources made available will be related”. The contracts of reliance were thus considered valid.
