Decision n. 5119/2022, 21 June 2022, Council of State, sect. V, Italy
Article(s) in Directive 2014/24/EU: 46
Topic: Division of contracts into lots
Member State: ITA
Court/rev. board: Council of State, sect. V, 21 June 2022, n. 5119
1. IMPLEMENTATION / RELEVANT NATIONAL LEGISLATION
Italian comment by Michele Cozzio
Art. 51 (Division of contracts into lots), legislative decree 50/2016 Code of Public Contracts
The Italian legislation (art. 21, legislative decree 50/2016), implementing the European legislation (art. 46, dir. 2014/24/EU), establishes the rule according to which contracting authorities divide contracts into lots, the value of which must favor the effective participation of micro, small and medium-sized enterprises. This is reinforced by the obligation for administrations to give reasons in the lex specialis for any choice not to subdivide. Italian jurisprudence grants administrations wide discretion as to subdivide into lots in response to various requirements, such as ensuring economies of scale or optimizing operating and maintenance costs.
The judgment emerges from the procedure initiated by the administration Rete Ferroviaria Italiana SpA for the supply of specialized goods and systems. Two aggregations of companies participated, and the second-ranked company challenged the award, claiming, on the one hand, the infringement of industrial property rights, and, on the other, the absence in dividing the contracts into lots. The administrative judge of first instance held that both complaints were unfounded and confirmed the award (Regional Administrative Tribunal of Lazio, Rome, sect. III, n. 2975/2021). The judge of second instance (Council of State, sect. V, n. 5119/2022), intervening on the issue of the infringement of industrial property rights, declared the lack of jurisdiction of the administrative judge, in favor of the ordinary judge (Civil Court, specialized section of enterprises). Regarding the profile of the non-division into lots, the court of second instance confirms the lawfulness of the administration’s choice.
On the subdivision into lots, the judgment confirms the well-established orientation at national level according to which, while it is true that subdivision into lots is an instrument designed to protect competition from the point of view of maximum participation in tenders, it is equally undisputed that this principle does not constitute an inviolable precept, nor can it excessively restrict the discretion of adjudicating administrations. In other words, the division into lots is a principle that can be adapted to the particularities of the case, and the adjudicating authority may disapply it if it provides adequate reasons for its choice in the tender documents. It is, therefore, a discretionary choice of the Public Administration, which the courts may assess in the light of the principles of reasonableness and proportionality, as well as the adequacy of the technical-economic assessments.
In the Italian legal order, the effectiveness of the general rule of subdivision into lots is guaranteed by the provision of a specific obligation for the administration to justify the decision not to carry out the subdivision.
In the case at hand, the motivation was formulated as follows: “the single lot is functional in guaranteeing economies of scale in technological, managerial, economic and maintenance terms, since the cost of design, development, production line set-up and homologation is borne only once, with consequent optimization of operating and maintenance costs”. The decision of the administrative judge did not make assessment of the content of the reasoning but considered it sufficient to hold that the administration has justified the non-division into lots.