I./ Legal framework :
National law
“Code
of public contracts for execution of works, provision of services and
supply of products” (shortly “Code of Public Contracts”) -Legislative
Decree no. 163 of 2006.
Art. 49 (“Availment”, translated “Reliance”, according to the directive)
The
candidate or tenderer, individual or associated in a consortium or a
grouping……in relation to a specific contract awarding procedure for
public works contracts, public supply contracts and public service
contracts, can meet an economic, financial, technical, organizational,
or SOA certificate (i.e qualifying certificate for execution of works)
requirement, relying on the requisites of another entity or the SOA
certificate of another entity.
EU Law
Directive 2004/18/EC
Article 47 (Economic and financial standing) par. no. 2
An economic operator may, where appropriate and for a particular
contract, rely on the capacities of other entities, regardless of the
legal nature of the links which it has with them. It must in that case
prove to the contracting authority that it will have at its disposal the
resources necessary, for example, by producing an undertaking by those
entities to that effect.
Article 48 (Technical and/or professional ability) par. 3
An economic operator may, where appropriate and for a particular
contract, rely on the capacities of other entities, regardless of the
legal nature of the links which it has with them. It must in that case
prove to the contracting authority that it will have at its disposal the
resources necessary for the execution of the contract, for example, by
producing an undertaking by those entities to place the necessary
resources at the disposal of the economic operator.
II./ The case :
The
applicant is a social co-operative. The tender procedure is for the
awarding of a “health and care” service contract. The social
co-operative is excluded form the procedure by the Contracting Authority
because it relied (“availment”) on another enterprise for the
(requested) requisite of UNI EN ISO 9002 certification.
The
Contracting Authority affirms that this kind of quality certification
is a subjective requirement, and it doesn’t fall under the scope of
“availment” (reliance), as provided by the national law and by the
directive, and it cannot be transferred to another entity. This
interpretation is based on a legal hint given by the Authority for the
supervision of public contracts for works, services and supplies (an
independent body with the aim of supervising public contracts).
The co-operative appeals against the exclusion before the first instance court (Regional Administrative Tribunal).
The
claim is sustained by the Tribunal. The Court holds that “Given that
the possibility of reliance is a general EU law principle, the reliance
is always applicable, even if it is not mentioned in the Invitation to
tender notice. So the candidate can utilise the reliance, under the art.
49 par. 1 and art. 50 par. 1 of Legislative Decree n. 163 of 2006, for
the purpose of demonstrating the requirements for participation in
Contract Awarding Procedures. Therefore the candidates can always rely
on another entity for any qualifying certification, including quality
certification. Then, as a general principle, the utilisation of the
reliance for ISO certification is always allowed, unless it is excluded
by the Invitation to tender notice.
The
Court also holds that, in that particular case, the Court cannot rule
on the suitability of the reliance contract to integrate the
requirements of effectiveness of the reliance (art. 48 par.3 of the
directive), considered that the reasons for the exclusion of the
claimant refer only to the nonexistence of the possibility of “reliance”
under art. 49 of Legislative Decree n. 163 of 2006, without any
reference to the specific case. Therefore, as the suitability of the
contract is not questioned in the case, the Court cannot evaluate the
“actual” suitability of the reliance contract according to the national
and EU law and, consequently, can only quash the act of exclusion from
the tender procedure.
The successful tenderer, affected by the first instance decision,
appeals the judgement before the Council of State (Administrative
Supreme Court) arguing that :
the
reliance contract cannot be utilised for quality certification (because
is a subjective requirement) and it doesn’t fall under the scope of the
art. 49 of the Legislative Decree 163 of 2006 and of the art. 47 and 48
of the Directive.
however,
the claimant has not demonstrated the suitability of its reliance
contract, which would have required the availability of resources
belonging to the other party (the holder of the quality certificate). In
fact, the reliance contract only provided the generic availability, for
the candidate, of the ISO qualification owned by the auxiliary company,
together with the assumption of liability in respect of the contracting
authority. Therefore, the First Instance Court should have excluded the
suitability of the reliance contract and, as a consequence, have
rejected the claim.
Italian Case – solution :
The Council of State sustains the appeal, and, as a consequence, rejects the first instance claim, holding as follows.
About the possibility of reliance for subjective requirements (like ISO quality certification) :
The
Council of State agrees in general terms, with the reconstruction
carried out by the reasoning of the first instance court, but disagrees
about the practical implications related to the particular case.
The
Council of State holds that article 49 of the Code of Public Contracts,
in regulating the institution of reliance, does not contain any
specific prohibition regarding subjective requirements.
In
view of EU law, the reliance is intended to increase competition and
facilitate the entry of new players in the market. Therefore, must be
avoided a restrictive interpretation of the scope of the “reliance”. In
this perspective, is not convincing the interpretation granted by the
Authority for the Supervision of Public Contracts, which affirms the
unsuitability of reliance for quality certificates.
About the “actual” suitability of the reliance contract.
However,
the above-mentioned general rules cannot overlook the problem to
demonstrate, in practical terms, the possibility of reliance of a
requirement which, for its characteristics, is connected to the entire
enterprise organization, and, especially, its internal procedures and
the wealth of knowledge used in carrying out activities.
In
this context, the tenderer must prove that the auxiliary company does
not simply “lend” the subjective requirement needed, but that the
auxiliary company also assumes the obligation to provide, in relation to
the execution of the specific contract, its resources and its
organizational apparatus, to justify the attribution of the quality
certification.
In the case in point, the "contract of availment” (reliance),
stipulated between the tenderer and the auxiliary company, only provides
the generic availability of the ISO qualification owned by the
auxiliary company, together with the assumption of liability in respect
of the contracting authority.
Then
the contract does not establish a clear commitment, for the auxiliary
enterprise, to provide facilities, personnel, operational techniques and
assets associated with subjective quality granted.
In
summary, the exclusion is lawful, due to the lack of suitability of the
reliance contract stipulated by the appealed co-operative.
About the power of the judge to question the suitability of the contract.
The
second relevant question is whether, in the case in point, is relevant
or not the “actual” suitability of the reliance contract. This
requisite, under art. 48 par. 3 of the directive, is not mentioned in
the contested exclusion, which is grounded only on the subjective nature
of the requisite. The co-operative (defendant) argues that the first
instance court has stated that the “actual suitability of the reliance
contract” argument was irrelevant in the case in point, because it
hasn’t been mentioned by the Contract authority or by the parties, and
the Court cannot go as far as judging on circumstances that were not
brought before the Court itself (in an action for the annulment of an
administrative decision).
The
Council of State holds that the defendant co-operative, to successfully
contest the exclusion from the tender procedure, should have proved its
interest to quash the exclusion. For all that, the co-operative must
prove not only the fallacy of the legal analysis expressed by the
administrative decision, but also the attitude of the contract of
reliance offered to meet the requirements prescribed, in relation to the
legal framework and its correct interpretation.
Conclusions
The
Council of State concludes that reliance, on quality certifications, is
permitted only if it is demonstrated the actual availability, for the
tenderer, of the elements pertaining to the quality requirement owned by
the auxiliary enterprise.