Decision n. 2, 25 January 2022, Council of State, Plenary Meeting, Italy
Article(s) in Directive 2014/24/EU: Art. 72
Topic: Modification of the contract / Replacement of a member of the group of economic operators
Member State: ITA
Court/rev. board: Council of State, Plenary Meeting, 25 January 2022, n. 2
1. IMPLEMENTATION / RELEVANT NATIONAL LEGISLATION
Art. 80 (Exclusion grounds), legislative decree 50/2016, Code of Public Contracts
Art. 48 (Prohibition of changing composition of temporary groups of companies) legislative decree 50/2016, Code of Public Contracts
The Italian legislation (art. 80, legislative decree 50/2016) allows subjective modification of the temporary grouping of companies, in the event of the loss of participation requirements by the agent or one of the mandataries not only during execution, but also during the tender phase, in this sense interpreting Article 48, paras. 17, 18 and 19-ter of the same Code.
Art. 48 regulates “temporary groupings and ordinary consortia of economic operators”, two of the most successful collaborative forms between companies aimed at participating in public procedures. This provision was described by the doctrine as having an “anti-monopolistic function”, serving as a limit on the dominance of large companies. Its para. 9 places, generally, the prohibition of changing the composition of temporary groups of companies (RTI) and ordinary consortia of competitors “compared to that resulting from the commitment submitted in the bid”. Its paras. 17, 18 and 19 represent exceptions to that principle.
The legislator intervened on Art. 48 by extending the application of paras. 17 and 18 to the hypotheses of subjective changes occurring during the tender phase, introducing para. 19-ter, but thereby leaving the clause regarding the limitation to the execution phase only of the possibility of changing the grouping structure due to loss of requirements (Art. 80) unchanged. As a result of this normative evolution, two jurisprudential orientations were formed: while one supports that it is possible to substitute, in the tender phase, the member of the grouping who incurs one of the grounds of exclusion, thereby giving precedence to para. 19-ter, the other affirms that the possibility of modification applies only in the execution phase.
2. FACTS
In the context of the procedure for the award of the contract for the widening of the third lane of the Florence South – Incisa section of the motorway, it happened that, at the end of the tendering procedure and pending the completion of the sub-procedure for the verification of the anomaly of the tender, the relationship between the contracting authority and a principal company of the A.T.I. (temporary joint venture) that had been awarded the contract was broken due to events connected to other contracts. That company then decided to withdraw from the grouping of undertakings, which asked the administration for the possibility of remodeling its internal structure. The request was rejected by the contracting station, which then decided to exclude the entire grouping from the tender, on the grounds that the principal had been responsible for “significant and persistent shortcomings in the performance of previous procurement contracts that resulted in termination for breach of contract”, relevant as a ground for exclusion under Article 80, para. 5, letter c-ter) of the Code of Public Contracts as well as conduct qualifying as “serious professional misconduct” (Article 80, para. 5, letter c)) such as to cast doubt on the integrity and reliability for the failures being “numerous, close in time and coeval with the conduct of the tender procedure in question”.
The measure was challenged before the Regional Administrative Tribunal of Tuscany, which annulled it, applying the combined provisions of paras. 18 and 19-ter of Art. 48 of the Code of Public Contracts, according to which the possibility of changing the subjective composition of the participating consortium, during the tender and during execution, must be allowed where the loss, by a principal company of one or more of the moral and professional requirements under Art. 80, has occurred.
Differently, the Council of State, in the order for referral to the Plenary Assembly, noted that the normative datum is not so perspicuous that it can be said sic et simpliciter that the interpretation of the provisions leads to a single interpretative outcome.
3. JUDGMENT
The judgment confirms an important principle on the subjective modification of RTIs due to loss of the participation requirements under Art. 80 of Legislative Decree 50/2016 by the agent or one of the principals, offering clarifications on whether the subjective modification of the temporary grouping of undertakings in the event of the loss of the participation requirements under Art. 80 by the agent or by one of the mandating agents is permitted not only during the execution phase, but also during the tendering phase. In case of a positive answer, the court was asked to specify the procedural method by which such amendment may be made. The plenary meeting stated that the subjective modification of the temporary grouping of companies, in the event of loss of the participation requirements (as in art. 80 legislative decree n. 50/2016) by the agent or one of the mandataries, is permitted not only during execution, but also during the tender phase. On this occasion, the Council of State observed how an interpretation that would exclude the application of the loss of the requirements at the tender stage, on the one hand, would introduce an unreasonable disparity of treatment between the various cases of contingencies referred to in paras. 17 and 18, and, on the other, would give rise to a case of strict liability and concrete inability to contract with the Public Administration on the part of “blameless” companies, since the preventative fact concerns only one of them. Moreover, such outcomes would also conflict with the principles of maximum participation in tenders and competition pursued by the provision of the RTI institution.
The Council thus concluded that none of the reasons supporting the principle of subjective immodifiability would serve as a basis for the prohibition of grouping changes due to loss of the requirements of Art. 80 during the bidding process.
All in all, the Plenary Assembly, with the present judgment, ruled that the subjective modification of the temporary grouping of companies is permitted not only during execution, but also during the tender phase, thereby highlighting that the antinomy shall be overcome through recourse to other considerations, referable to principles of interpretation according to reasonableness or according to the Constitution.
