Administrative, Contracts of the Public Administration, Availment, Content, Identification, Cons. St., sect. III, 04 April 2018 n. 2102
Determinability or possibility of reconstructing the commitments undertaken by the auxiliary company, by means of an overall reading of the avail- ability contract
In terms of availing, the commitments made by the auxiliary company, in order to corroborate on a substantial level the loan of the requirement (and avoid that it is reduced to a declaration of commitment purely formal and unsuitable to guarantee the contracting station in terms of soundness financial condition of the auxiliary competitor), must be, if not determined, at least determinable, or reconstructable through an overall reading of the contract of availment (1).
Clarified the Section – in recalling the principles expressed by Cons. St. A.P., 4 November 2016, n. 23 – which lends itself to the purpose of the contract that contains clauses uniquely suited to found the “transfer”, to the auxiliary company (and therefore, consequently, for the benefit of the contracting authority, to satisfy its warranty requirements in relation to economic-financial reliability of the service performer), the elements that constitute the substantial substratum and, together, the ratio of the requirement in question, such as the reference to the joint and several liability assumed by the auxiliary and auxiliary companies “in relation to the object performances of the contract “, as a guarantee of which, in fact, the” cumulative “financial soundness of the same companies is recorded, as evidenced, pro quota, by the specific turnover of which they have their respective possession.
It added the Section that does not note, from this point of view, that the joint liability of the companies subscribing to the availablishment contract constitutes the typical effect of the institution, pursuant to art. 89, paragraph 5, legislative decree 18 April 2016, n. 50 (“the competitor and the auxiliary company are jointly liable towards the contracting authority in relation to the services covered by the contract”), with the consequent apparently redundant nature of the aforementioned clause.
The joint liability of the two companies is in fact relevant for the present purposes as an instrument for the realization of the “communion” of the financial resources held by the auxiliary company and of which the turnover requirement is an expression, belonging to therefore to the plan of the case, even before that of the effects, of the avalimento, ergo to the sphere of the assumptions constitutivi of the institute.
Lastly, the Section observed that, rather than the “curricular” component of the requirement in question, or rather its expressive capacity for the experience that the company has gained in the sector, it must be observed that it does not lend itself to being translated into commitments specific to the provision of certain resources, such as the “experiential wealth” mentioned by the appellant party: assets that, as intrinsic to the company, can not be extrapolated tout court to be made available to the auxiliary company.
From this point of view, the guarantee that the Administration receives from the surplus correlates with the coaching, the competing company and deprives (in part) the experience necessary to guarantee full reliability with regard to the correct execution of the contractual services, of another company, in possession of the specific turnover (hence of the experience) of which the competitor is defective, which, through the stipulation of the contract of availment, is obliged to provide assistance and cooperation to the auxiliary company necessary to guarantee the success of the contract: obligations that, even if not specified in an ad hoc clause, are easily obtained from the duties of good faith and cooperation that innervate any contractual relationship, especially in the presence of joint and several liability in order to execution of the contractual services that the two companies have expressly assumed with the stipulation of the contract of avail ent.
Source Administrative Justice
