Decision n. 2515, 9th March 2023, Council of State, Sec. V, Italy
Article(s) in Directive 2014/24/EU: Art. 63
Topic: Conditions for reliance on the capacity of other entities
Member State: IT
Court/rev. board: Council of State
1. IMPLEMENTATION / RELEVANT NATIONAL LEGISLATION
Article 46 Legislative Decree no. 50/2016
2. FACTS
By a notice published in 2019, Trenitalia s.p.a. (the primary train operator in Italy) issued a call for tenders aimed at establishing framework agreements with single operators for the procurement of cleaning services for Trenitalia’s own stock and industrial facilities. The second-ranked was Roma Multiservizi s.p.a. for lot no. 4, which is at stake in this case. The award was then revoked due to some calculation errors in the attribution of scores and then re-awarded in favor of the same operator. The next classified in the list, Dussmann Service s.r.l., appealed against the awarding decision, arguing – amongst other claims – an incorrect application of the lex specialis.
With the first ground of appeal, the appellant claimed the misinterpretation of the corresponding ground of appeal in the first instance, where Dussmann had contested that, through the reliance on the capacity of other entities, the agent-auxiliary would have been left without the (non-divisible) requirements of economic-financial capacity referred to in the tender notice, having lent them to the agent-auxiliary.
It was thus disputed as to whether the economic operator in questions met the economic and financial capacity requirements stipulated in the notice. The requirements were: 1. The attainment of the minimum threshold of reference provided for in para. 6 of the Economic-Financial Evaluation procedure in the balancesheets of year 2017 and 2018, and 2. Certification of the balance sheets of 2017 and 2018 by an auditing firm registered in the Register of Auditors, licensed to perform statutory audits. For these requirements, it was stipulated that, in case of participation in the tender by economic operators referred to in Article 45, para. 2, letters d), e), f) and g) of Legislative Decree 50/2016 (respectively, temporary groups of tenderers, ordinary consortia of tenderers, aggregations of enterprises adhering to the network contract, and subjects having concluded the agreement for the European Group of Economic Interest), the requirement had to be possessed and proved by all members of said economic operators.
3. JUDGMENT
The Consiglio di Stato noted that the lex specialis was clear in requiring – with a specific clause in the notice – the integration of the requirement of reaching the minimum requirements threshold, as well as the certification of financial statements by all the members of the temporary association. This does not rule out that the requirement (subjectively required from each member of the temporary association) could be objectively divisible and liable to be satisfied by means of total or partial reliance on the capability of others.
The fact that, in this case, it is agreed that the threshold provided is linked to balance sheet ratios, the level of which could be subject of partial or total lending, the second requirement (that is the certification of the financial statements) is to be considered ancillary to the first. From this, it is implied that it is possible to supplement the requirements also with reliance on the capacities of others – as long as the capacity of the former is ensured.
Therefore, the possibility of supplementing the requirements (also) with internal reliance on the capacities of other entities within the temporary association is foreseen, provided that the capacity of the former is ensured, and that is, on condition that the auxiliary is provided in a superabundant and sufficient measure for its satisfaction in the head of both operators, as well as having financial statements subject to certification (in relation to the second requirement).
In this context, the Court noted the diversity of such reliance on the capacity of others compared to one concerning requirements of purely subjective nature and related exclusively to quality – where splitting would not be permitted.
It held that the applicant made an error, namely, that for the contested measure to be legit, it would have been necessary, in this case, to have an evidence on the carrying out, by the administration, of a preliminary investigation on the requirements and, thus, on the fact that the agent-auxiliary possessed them to such an extent that it could ensure them also in the loan to the principal in case of reliance on capacity of others without losing them on its own. A relevant defect in this regard could have been a deficiency of the requirement, which the appellant has not proved.
The appeal was dismissed.
MAIN LEGAL ISSUE: the reliance on the capacity of other entities can (i) be applied also onto member of the same group of economic operators and (ii) be used partially, in the sense that a member can “lend” part of its economic capacity to a member of the same group of EO. The only limitation is that the “lending” member should be aware to have a remaining economic capacity left in order to meet himself the requirements set out in the call.
