Decision n. 2784, 13th April 2022, Council of State, sect. V, Italy
Article(s) in Directive 2014/24/EU: Art. 63
Topic: Reliance on the capacity of other entity
Member State: ITA
Court/rev. board: Council of State, sect. V, 13 April 2022, n. 2784
1. IMPLEMENTATION / RELEVANT NATIONAL LEGISLATION
Italian comment by Michele Cozzio
Art. 89 (Reliance on the capacity of other entities), legislative decree 50/2016, Code of Public Contracts
The Italian legislation (art. 89, legislative decree 50/2016), in accordance with European Union law (art. 63, Dir. 2014/24/EU), allows the option for economic operators participating into procurement procedures to rely on technical and professional capacities of other subjects (so-called “technical” or “operational” reliance) with a view to satisfy the requirements of adjudicating administrations. The Italian legislation asks the enterprises to attach the so-called reliance on the capacity of other entity contract to the tender documents, thereby indicating the resources made available; such resources shall be listed in a precise and analytical manner, under penalty of nullity of the contract. The jurisprudence does not consider as valid the contracts generally indicating the commitment in providing the necessary resources for the duration of the procurement but missing the indication of what those resources are. In particular, administrative judges have established that (…) contracts do not have to quantify the means made available in a strict manner, nevertheless, they shall indicate at least the criteria for the quantification of the provided means; in the same way, such contracts do not have to detail the qualifications of the personnel made available, but they shall at least clarify whether the personnel will directly perform a service or it will train the staff of the auxiliary company.
2. FACTS
The judgment follows the procedure initiated by the National Institute of Statistics (Istat) for the award of the public procurement for armed security services (contract value over 3 million euros). The criterion in which the procedure is based is the most economically advantageous tender, with the awarding of 70 points to the technical offer and 30 points to the price.
The second-ranked company challenged the award on the grounds that the awarded company had used a contract of reliance that was null and void due to its vagueness, indeterminateness, and unreliability. The administrative judge of first instance found the appeal well-founded and annulled the award (Regional Administrative Court of Lazio, sect. III-quarter, n. 11585/2021). Also, the administrative judge of second instance (Council of State, sect. V, n. 2784/2022) confirmed the nullity of the award on the same grounds.
3. JUDGMENT
The judgment offers clarification on the requirements for the validity of contracts of reliance of technical and operational kind, with which the auxiliary enterprises commit to make available the technical and professional resources to the participating enterprises as required by the administrations.
The clarifications of the Council of State concerns, firstly, the lawfulness of the choice of requiring enterprises to have a specific turnover for the purpose of proving technical and professional capacity requirements. Such request, in fact, makes it possible to ascertain not only the company’s economic soundness index, but also its technical capacity to produce revenue based on the company’s means and experience in performing services.
Further clarifications concern the prerequisites for the validity of the technical contract of reliance. National legislation and jurisprudence agree in requiring that the means and resources for the performance of the contract be specifically indicated. In particular, the contract of reliance shall define the exact functions that the ancillary company will perform (either directly or in aid of the company) and the criteria for quantifying the resources and/or means provided. It follows, moreover, that the technical contract of reliance is to be understood as being onerous in nature, an element that makes it possible to prove the seriousness of the negotiating commitment assumed in return for the provision of the necessary resources. The contract is admissible even if it is free of charge, but only if there is a single decision-making center among the economic operators involved and, thus, a unified economic interest that justifies the absence of consideration for the provision of resources on a causal basis.
