Council of Administrative Justice for the Region of Sicily, jurisdictional section, 12 May 2021, no. 420
In this judgment, the Council of Administrative Justice for the Region of Sicily has clarified the debated question of the requirements that the auxiliary company must necessarily satisfy in the event of reliance on the capacity of other entities for the participation in a public tendering process.
In the present case, the claimant company requested the reform of the judgment of the Regional Administrative Tribunal of Catania, section I, no. 2591/2020, which had rejected the appeal for the annulment of the exclusion order, based on the fact that the auxiliary company was not registered in the National Register of Environmental Managers, as necessarily required by the tender procedure documentation for the participants in the procedure.
For the purposes of such decision, the Judges of the Sicilian Supreme Court have preliminarily explained that i) pursuant to Article 89 of Legislative Decree 50/2016 – in accordance with Article 63 of Directive 2014/24/EU – in the event of reliance on the capacity of other entities, the two companies involved must both satisfy the general requirements and that ii) as provided by paragraph 10 of the same Article 89, the aforementioned qualification mechanism cannot be used in order to fulfill the requirement of the registration in the National Register of Environmental Managers, which must always be owned – at least – by the relying company.
Given that, the C.G.A.R.S. pointed out that in the case in question, the tender notice did not prescribe that such requirement of professional qualification had to be met by the auxiliary company, but that only the competitor had to be registered in the National Register of Environmental Managers.
Furthermore, the Court also observed that not even the legislation on public contracts provides anything to that extent, and this is in perfect compliance with the aim of competition and maximum opening in the public procurement market (so-called favor partecipationis), pursued by the European Union.
This being the case, in the view of the administrative judges, the non-recognition of a broad discretion in the recourse to the reliance on the capacities of other entities is not in accordance with the spirit by which the European legislator has designed the institution in question (“In application of the law of the European Union, the contracting authority encounters the limitation of not being entitled to exclude the mechanism of reliance except in the cases specifically provided for by the law“, as stated by the Plenary Assembly, 16 October 2020 no. 22), given that the Public Procurement Directives reject any restrictive interpretation of the possibility for a tenderer to rely on qualification per relationem (“they do not establish any general prohibition on the possibility for a tenderer to rely on the capacities of one or more third parties in addition to its own capacities in order to satisfy the criteria laid down by a contracting authority“, Court of Justice, 14 September 2017, C-223/16).
In the light of the above, the Administrative Council for the Region of Sicily concluded by stating the principle according to which, in the context of the reliance on the SOA certification, the auxiliary company does not have to be registered in the National Register of Environmental Managers in order to correctly perform the services, since the relying company is the one that must satisfy that requirement pursuant to Article 89, paragraph 10 of Legislative Decree 50/2016.