Administrative, Contracts of the Public Administration, Availment, Possession of requirements integrating the technical-professional and economic-financial capacity,Indication technical reference with reference to the experiential requirements, Sufficiency, Regional Court of Administrative Justice of Trento, Unique Section, ruling 11 June 2018, n. 128

Distinction between availing c.d. of guarantee and availment c.d. technical or operational

The TAR recalled Cons. St., sect. V, 28 February 2018, n. 1216

It is legitimate the contract of availment for the possession of requirements integrating the technical-professional and economic-financial capacity that, with reference to the experiential requisites characterized by abstraction, indicates a technical referent, as it is not necessary to make available means and equipment ( 1).

(1) He recalled the Tar that the jurisprudence has on several occasions dealt with the distinction between c.d. of guarantee and availment c.d. technical or operational, on which the parties have extensively discussed in their respective memoirs.

The TAR recalled Cons. St., sect. V, 28 February 2018, n. 1216 according to which the availment c.d. guarantee “occurs in the event that the auxiliary provides its economic and financial soundness to the auxiliate, reassuring the contracting authority of its capacity to meet the economic obligations resulting from the contract, even in the event of non-compliance: this is the benefit that relates to the economic-financial requisites and, in particular, the global or specific turnover », while the use of the so-called technical or operational “occurs, on the other hand, in the event that the auxiliary undertakes to make available to the auxiliate its technical and organizational resources essential for the execution of the contract: this is the availment that has as object the technical-professional capacity requirements among which, for example, the staff endowment “.

The appeal judge then reiterated that “in the first case (in which the auxiliary company confines itself to” making available “its added value in terms of financial soundness and established industry experience), it is not, in the principle, it is necessary that the negotiation declaration constituting the contractual commitment refers to specific assets or to material indexes aimed at expressing a certain and determined patrimonial consistency and, therefore, at the disposal of goods to be described and identified with precision, but is sufficient that the contract statement to provide and provide the overall financial solidity and the experiential wealth to the ailing, thus guaranteeing a certain reliability and a concrete supplement of responsibility “; conversely “in the case of availing c.d. technical or operational (which has different requirements with respect to those of economic and financial capacity) there is always the need for a specific availability of specific resources: in order for the parties to indicate with precision the company resources placed at provision of the exile to carry out the contract “.

In light of these hermeneutical coordinates, the Council of State concluded (with reference to the case submitted to its examination) that “for the provision of professional experience, in this case, in addition, related to services of an intellectual nature, as such to necessarily personal execution, such as the planning or the direction of the work, the supervision and control over the execution of the service contract “it was necessary” that in the contract they were punctually indicated (and therefore, as such, effectively and concretely available to the company auxiliary) means, instruments and appropriate skills.

And this also in order to allow the contracting authority to punctually and objectively verify the effectiveness and usefulness of the promised commitment.

In the case examined by the Trga, the provision by the auxiliary company of its technical manager complements the necessary requirement for the transfer.

Source Administrative Justice