Decision n. 9370, 31st October 2023, Council of State, sec. V, Italy
Article(s) in Directive 2014/24/EU: Art. 71
Topic: Prohibition of subcontracting - duty to give reasons
Member State: IT
Court/rev. board: Council of State
1. IMPLEMENTATION / RELEVANT NATIONAL LEGISLATION
Art. 105, para. 2, Public Contracts Code (legislative decree 50/2016).
2. FACTS
Under Art. 105, para. 2, of Legislative Decree 50/2016, contracting authorities are allowed to limit the tenderers’ possibility in subcontracting, where that limitation is aimed at reinforcing the control of the construction site activities and of securing a higher protection of the labor conditions and of the health and safety of workers.
In this case, Alstom Ferroviaria s.p.a. had requested the contracting authority to modify the procurement documents at stake to include the possibility of subcontracting for the works of a specific category (OS9, i.e. installations for illuminated signage and traffic safety). The relevant prohibition, as stated in the tender documents, was based on the specific circumstances of the procurement: the performance of the works occurred in the railway field, which made it “necessary to optimize the coordinating technical and organizational activities, to reduce interferences among different operators carrying out the works and to limit the number of the operators active on the rail”.
Because of the strict deadlines and the complexity of the tender, the company did not make it to present an offer in time. They thus subsequently complained before the regional administrative tribunal that, amongst other things, the clause in the tender documents prohibiting the subcontracting of works of OS9 category was against Art. 105, comma 2, of Legislative Decree 50/2016. The company argued that such a restriction was also incompatible with the principles expressed by the Court of Justice of the EU (CJEU) and hindered the freedom of disposal and service provision. Additionally, the applicant claimed that such prohibition constituted an exclusion ground since the operator was deprived from the possibility of organizing its resources. The court of first instance rejected the claim and the company appealed to the Council of State.
3. JUDGMENT
The Council of State confirmed the first instance judge’s decision. It ruled that the contracting authority had adequately motivated the prohibition of subcontracting, which had the aim of reinforcing the control of the construction site activities and of securing a higher protection of the labor conditions and the health and safety of workers (in accordance with Art. 105, para. 2, 3rd sentence, of legislative decree 50/2016). The prohibition could not be considered an exclusion ground because it did not influence the competitive dialogue, since it would have been possible to take part in the tender without subcontracting.
Link to the original decision: https://portali.giustizia-amministrativa.it/portale/pages/istituzionale/visualizza?nodeRef=&schema=cds&nrg=202302764&nomeFile=202309370_11.html&subDir=Provvedimenti
