Decision n. 8127, 1st September 2023, Council of State, sec. V, Italy
Article(s) in Directive 2014/24/EU: Art. 46 – Division of contracts into lots
Topic: Division into lots – Award limits and participation limits in the light of the new Public Procurement Code
Member State: IT
Court/rev. board: Council of State
1. IMPLEMENTATION / RELEVANT NATIONAL LEGISLATION
Art. 51 of D.lgs. n. 50/2016 (former Public Contracts Code) and Art. 58, Legislative Decree n. 36/2023 (new Public Procurement Code).
2. FACTS
In this case, the Council of State decided on the division into lots and on the related limit on award and limit on participation, making some interpretative references to the new Italian Public Contracts Code (Legislative Decree n. 36 of 31 March 2023). The tender in question concerned the awarding of armed surveillance services for the Ministry of Justice and was divided in 34 lots. The award limits in the contract documents foresaw that, when participating in more than one lot, each operator could submit a bid for a maximum of 13 lots, with those lots not exceeding the 40% of the total value of the tender.
In response to a specific question as to whether the award limit should apply to the individual-participating undertaking or to all the undertakings forming part of the same group (within the meaning of Art. 2359 of the Italian Civil Code), the contracting authority had clarified that “the economic-functional link between undertakings managed by companies belonging to the same group would not [have] resulted in the loss of the autonomy of the individual undertakings having separate legal personality”, so that “the controlled or associated undertakings within the meaning of Article 2359 of the Italian Civil Code, in possession of the requisites required by the call for tenders, [could] participate and be awarded, each of them, several lots […]”.
After the award, the appellant – who ranked second – discovered that the winning companies constituted a single corporate group (“gruppo unico societario”), since they were all controlled by one company, thus claiming that the respective offers all originated from the same decisional center. Therefore, even if they had formally respected the participation and award limits as provided by the contract documents (each company has presented offers for less than 13 lots and with a total value of less than the 40% of the subject-matter), the single decisional center de facto and substantially resulted in competing for a total of 32 lots and for a value widely beyond the prescribed one. Having lost before the Administrative Tribunal of Lazio region, the appellant appealed to the Council of State, which dismissed the appeal.
3. JUDGMENT
Firstly, the Administrative Tribunal rejected the claim that the tender at stake had a unitary nature, because each lot foresaw its own procedure. Consequently, since, for each lot, the offers were distinct, the link between different operators could not lead to exclusion as according to Article 80, comma 5, letter m) of the Public Contracts Code (on exclusion of the economic operator where it is in relation to another participant in the same award procedure). Furthermore, the Tribunal ruled that the general aim of avoiding distortion of competition (Art. 80 of the former Public Contracts Code) was not frustrated in this case, because there was no risk of mutual influence among the various operators, since the procedure was not unitary, but divided into lots. Finally, the Tribunal recalled the consolidated case law on the issue: it is “never possible to infer from the introduction of a limit on the award of lots, a prohibition on participation in different lots by companies in a situation of connection” (Consiglio di Stato, sect. V, n. 2350/2021). It also recalled that the contracting authority had clarified that the award limit was to be applied to individual undertakings and not, as a whole, to all the companies belonging to the same group according to Article 2359 of the Civil Code.
The Council of State confirmed the Administrative Tribunal’s decision. To illustrate the non-homogeneous interpretations of the application of the award limits (in the light of Art. 51 of the former Public Contracts Code) in the Italian case law, the Council of State recalled the most recent orientation according to which the contracting authority has discretion both in the choice of introducing an award limit and in the decision of structuring it in a more stringent manner (thus extending it also to undertakings that are part of a single group). The Council highlighted that, in this perspective, the issue will always depend on whether the contracting authority has or has not extended the award limit to enterprises which are connected among them.
All in all, the option to extend the award limit to economic operators who are linked or controlled by a single decisional center shall be explicitly expressed by the contracting authority. In other words, if a limit on the award exists and the contract documents are silent as to whether such limit applies to operators who are linked or controlled by a single decisional center, such silence should be interpreted as a negative answer.
As the contracting authority in this case did clarify that it had excluded the application of the extension of the award limit to economic operators who are linked or controlled by a single decisional center, the Council considered it unnecessary to assess whether such operators were actually grouped or not. On this occasion, the Council of State appears to relevantly emphasize the importance of the protection of legitimate expectations over the more general protection of competition.
