Article(s) in Directive 2014/24/EU: Art. 33; Art. 38
Topic: Framework agreements / Joint procurements
Member State: ITA
Court/rev. board: Council of State, sect. III, 8 August 2022, n. 7016
1. IMPLEMENTATION / RELEVANT NATIONAL LEGISLATION
Italian comment by Michele Cozzio
Art. 54 (Framework agreements), legislative decree 50/2016 Code of Public Contracts
Art. 37 (Aggregation and centralisation of procurement), legislative decree 50/2016 Code of Public Contracts
The adhesion of an administration to the contract stipulated by another contracting authority for the acquisition of the same services and supplies is a solution that is increasingly applied in the Italian system, with a significant economic impact: the value of contracts awarded by adhesion is worth tens of millions of euros every year. The legitimacy of this practice requires upstream the determination of the entities that may adhere to the contract, as well as the services that may be requested through adhesion. In other words, the respect for the principles and rules of public evidence requires knowing the administration that can join, the content of services, and the variations that may be admissible.
National jurisprudence holds that the practice of accession is incompatible with the renegotiation of contractual conditions, however, the application of this principle raises difficulties, as the distinction between variations related to the physiological adaptation of the contract, thus admissible, and variations involving the modification of essential elements of the contract, thus requiring a new award procedure, is not always clear.
The judgment arises from the non-renewal of the sterilization service by the Azienda Socio Sanitaria (ASST) of Bergamo Ovest, which believed to be managing the service by applying the contractual adhesion clause to the tender held for the same service by ASST Crema. The company originally entrusted with the service at ASST Bergamo Ovest appealed against this choice.
The Court of first instance held that ASST Bergamo Ovest did not merely extend the contract tout court with the company that won the tender issued by ASST Crema but included substantial changes in the service in the contract. These changes represent a renegotiation that should have resulted in a new awarding procedure. For these reasons, the administrative judge ruled that the procedure was illegitimate and that the extension of the contract to the successful bidder in the tender announced by ASST Crema should be annulled (Regional Administrative Tribunal of Lombardy, Brescia, sect. I, 4 March 2022, n. 224).
In the appeal against this ruling, the Council of State (sect. III, 8 August 2022 n. 7016) offers a different interpretation, holding that the performance modifications introduced do not go beyond the boundaries of the original contract, merely specifying its characteristics as an improvement and adaptation to the needs of ASST Bergamo Ovest.
The judgment provides an opportunity to reflect on posthumous accessions to contracts already awarded by another administration. Opposing requirements are intertwined on this issue: on the one hand, the favor for aggregate forms of procurement by administrations, expression of interest in financial containment (so-called spending review) and, on the other hand, respect for European and national rules and principles (transparency, adequate publicity, non-discrimination, equal treatment, and proportionality) placed at the service of the proper functioning and competition of the public contracts market.
The Council of State, in previous rulings (sect. III, 4 February 2016 n. 442) has pointed out that “the extension of the contract awarded following a regular public tender is a phenomenon that does not contradict the rules of competition but constitutes, if anything, a derogation from the principle of perfect correspondence between the individual contracting station and the individual tender announced”. This derogation is justified based on the advantages “from the progressive concentration of tenders, avoiding their unnecessary, inefficient, uneconomic and wasteful parceling out whenever they have common subjective and objective characteristics”.
These are all shareable motivations; however, it should not be overlooked that the mechanism of posthumous accession is not without its criticalities. We point out, in fact, the risk of abuse of the instrument that can be recognized whenever the adhesion clause is used in violation of the requirements of determinacy that legitimize it. This risk is more evident in cases where adhesion concerns benefits that: (i) are not perfectly homogeneous with those requested by the administration making use of the accession clause, (ii) are similar but not identical … in short, whenever the administration adheres to the initial contract even though the services requested would prevent photocopy contracts with the consequence of making it necessary to negotiate by tender.
In the present case, the Council of State does not perceive this risk. The improvements introduced, although significant in economic terms, are among those functional to the adaptation of the service to the needs of the administration applying the accession clause.