The Consortium Member of a Stable Consortium is Comparable to the Auxiliary Company

COUNCIL OF STATE, PLENARY ASSEMBLY, 18 MARCH 2021 NO. 5

The consortium member of a stable consortium, not designated for the execution of works, is comparable, in relation to the application of article 89 para. 3 of Legislative Decree 18 April 2016, no. 50 (“Public Contract Code”), to the auxiliary company in the reliance on the capacity of other entities, so that the loss by the latter of the requirement obliges the contracting authority to order its replacement.

This is the principle of law established by the Plenary Assembly of the Council of State.

The Council of Administrative Justice of the Sicily Region had asked the Plenary Assembly to ascertain whether, in the event of participation in a public tender by a stable consortium, the consortium member, not appointed for the execution of the works, from which the consortium derives its qualification, should be considered a third party with respect to the consortium body (Ordinance no 1211 of 29 December 2020).

If this argument were to be accepted, in fact, given the equivalence that would be established with the auxiliary company in the case of reliance on the capacity of other entities, it would follow that, even in the hypothesis in which the consortium member loses the qualification requisite during the public tender, article 89, para. 3 of the Public Contract Code could and should be applied, with the consequent possibility for the stable consortium to proceed with the substitution of the member, as an exception to the principle of continuity in the possession of the requisites during the public tender and up to the awarding of the works.

According to the hermeneutical coordinates set out by the Council of State, Plenary Assembly, March 18, 2021, no. 5 to the proposed question must be given an affirmative answer, by virtue of an interpretation of article 89 para. 3 of the Public Contracts Code, in line with the spirit of article 63 of Directive 2014/24/EU.

More precisely since the consortium member who supplies the requirements without taking part in the execution of the works establishes a relationship very similar to that of the reliance on the capacity of other entities (in this regard, the Council of State speaks of a form of attenuated reliance), consequently – concludes the Plenary Assembly – there is no reason, therefore, to reserve to the latter a different treatment from that reserved to any participant, who has recourse to reliance on the capacity of other entities.

In the light of the above, the consortium member of a stable consortium is comparable to the auxiliary company in the case of reliance on the capacity of other entities for the purposes of the application of article 89 para. 3 of the Public Contract Code and article 63 of Directive 2014/24/EU.

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