Art. 105. Subcontracting

1. The economic operators usually perform the works or works, services and supplies included in the contract. The contract cannot be assigned under penalty of nullity, without prejudice to the provisions of article 106, paragraph 1, letter d). Subcontracting is permitted according to the provisions of this article.

2. Subcontracting is the contract with which the contractor assigns to third parties the execution of part of the services or work covered by the contract. In any case, it is subcontracting any contract involving activities carried out anywhere that require the use of labor, such as supplies with installation and hot freight, if individually exceeding 2 per cent of the amount of the services provided or amount over 100,000 euros and if the cost of labor and personnel is higher than 50 percent of the contract amount to be awarded. Without prejudice to the provisions of paragraph 5, any subcontracting may not exceed 30 per cent of the total amount of the contract for works, services or supplies. The assignee informs the contracting authority, before the start of the service, for all sub-contracts that are not subcontracted, stipulated for the performance of the contract, the name of the sub-contractor, the amount of the sub-contract, the object of the work, service or supply entrusted. Furthermore, any changes to this information during the sub­contract are communicated to the contracting authority. It is also mandatory to acquire a new supplementary authorization if the subject of the subcontract is subject to change and the amount of the same is increased and the requirements of paragraph 7 have changed.

3. The following categories of supplies or services, due to their specific characteristics, are not classified as subcontracted activities:

a) the assignment of specific activities to self-employed workers, for which communication must be made to the contracting authority;

b) the sub-supply in the catalog of IT products;

c) the assignment of services of less than € 20,000.00 per year to agricultural entrepreneurs in the municipalities classified as totally mountain in the list of Italian municipalities prepared by the National Institute of Statistics (ISTAT), or included in the circular of the Ministry of finances n. 9 of June 14, 1993, published in the ordinary supplement no. 53 to the Official Journal of the Italian Republic n. 141 of 18 June 1993, as well as in the municipalities of the smaller islands referred to in Annex A annexed to the Law of 28 December 2001, n. 448;

c-bis) the services rendered in favor of the recipients by virtue of continuous contracts of cooperation, service and / or supply signed prior to the call for tenders for the award of the contract. The related contracts are deposited at the contracting authority either before or at the same time as the signing of the contract. letter introduced by legislative decree no. 50/2017 in force from 20-5-2017

4. The parties entrusted with the contracts referred to in this code may subcontract the works or works, services or supplies included in the contract, subject to authorization by the contracting authority provided that:

a) the subcontractor has not participated in the procedure for awarding the contract;

b) the subcontractor is qualified in the relevant category;

c) at the time of the offer have been indicated the works or parts of works or services and supplies or parts of services and supplies that are intended to be subcontracted;

d) the tenderer demonstrates the absence of subcontractors from the grounds for exclusion referred to in Article 80.

5. For the works referred to in Article 89, paragraph 11, and without prejudice to the limits provided for in the same paragraph, any subcontracting may not exceed thirty per cent of the amount of the works and can not be, without objective reasons, divided.

6. It is mandatory to indicate the triad of subcontractors when presenting the tender, where the works, services or supplies contracts are of an amount equal to or exceeding the thresholds set out in Article 35 or, regardless of the tender amount, regard activities most exposed to the risk of mafia infiltration, as identified by paragraph 53 of Article 1 of law n. 190 of 6 November 2012. In case of contracts having as object different types of performances, the triad of subcontractors shall be indicated with reference to each type of homogeneous performance provided for in the call for competition. In the call or notice the contracting authority or entity shall provide, for contracts below the thresholds set out in Article 35: the modalities and timeframes for the verification of the conditions of exclusion as referred to in Article 80 before the conclusion of the contract itself, for the contractor and subcontractors; the indication of the required means of proof, for the demonstration of the grounds of exclusion for serious professional misconducts as referred to in paragraph 13 of Article 80.

7. The contractor shall deposit the subcontracting contract with the contracting authority or entity at least 20 days before the date of effective start of the execution of the relevant provisions. At the moment of the deposit of the subcontracting contract with the contracting authority or entity the contractor shall also submit the certification testifying the possession by the subcontractor of the qualification requirements provided for in this Code in relation to the subcontracted provision and the declaration of the subcontractor testifying the absence for subcontractors of the grounds of exclusion referred to in Article 80. The subcontracting contract, accompanied by the technical, administrative and graphic documentation directly derived from the acts of the awarded contract, shall precisely indicate the operative ambit of the subcontract both in the performance and economic terms.

8. The main contractor is exclusively responsible to the contracting authority or entity. The contractor is jointly responsible with the subcontractor in relation to social security and salary obligations, pursuant to Article 29 of legislative decree n. 276 of 10 September 2003. In the cases referred to in paragraph 13, letters a) and c), the contractor shall be freed from the joint responsibility referred to in the first period.

9. The contractor is required to fully observe the economic and regulatory treatment established by the national and territorial collective agreements in force for the sector and for the area in which the services are performed. It is also jointly and severally liable for compliance with the aforementioned rules by subcontractors in relation to their employees for the services rendered under the subcontract. The subcontractor and, through him, the subcontractors, transmit to the contracting authority before commencement of work the documentation of notification to the social security institutions, including the Building Fund, where present, insurance and accident prevention, as well as a copy of the plan referred to paragraph 17. For the purposes of payment of the services rendered within the scope of the contract or subcontracting, the contracting authority acquires the single valid contribution document relating to the contractor and all the subcontractors.

10. For contracts relating to works, services and supplies, in the event of delay in the payment of remuneration due to employees of the executor or subcontractor or subjects holding subcontracts and piecework, as well as in case of non-compliance resulting from the single document of contribution regularity, the provisions of article 30, paragraphs 5 and 6 apply.

11. In the case of formal objection to the requests referred to in the preceding paragraph, the person in charge of the proceeding shall forward the requests and disputes to the provincial directorate of labor for the necessary investigations.

12. The contractor shall substitute the subcontractors in reference to whom the specific verification has demonstrated the existence of the grounds of exclusion referred to in Article 80.

13. The contracting authority or entity directly corresponds to the subcontractor, piece workers, service provider and to the provider of goods or works, the sum due for the provisions executed by them in the following cases:

a) when the subcontractor or piece worker is a micro-enterprise or a small enterprise;

b) in case of failure by the contractor;

c) upon request of the subcontractor and if the nature of the contract so permits.

14. The contractor must perform, for the services subcontracted, the same unit prices resulting from the award, with a reduction not exceeding twenty per cent, in compliance with the quality and performance standards provided for in the contract. The contractor shall pay the costs of safety and labor, relating to the services subcontracted to subcontractors, without any discount; the contracting authority, after consulting the construction manager, the safety coordinator in the execution phase, or the execution director, shall verify the effective application of this provision. The contractor is jointly and severally liable with the subcontractor for the fulfillment by the latter of the security obligations required by current legislation.

15. For the works, the names of all the subcontractors must be indicated on the signs posted outside the building site.

16. In order to combat the phenomenon of undeclared and irregular work, Single Document of Contributive Regularity is inclusive of the verification of the adequacy of the incidence of the workforce related to the specific contract entrusted. This congruity, for construction works, is verified by the Construction Fund on the basis of the agreement taken at national level between the social partners signing the comparatively more national collective agreement for the construction sector and the Ministry of Labor and Social Policies; for non-construction works, it is verified in comparison with the specific collective agreement applied.

17. The security plans referred to in the legislative decree of 9 April 2008, n. 81 are made available to the competent authorities responsible for inspections of inspections of worksites. The assignee is required to take care of the coordination of all the subcontractors working on the site, in order to make the specific plans prepared by the individual subcontractors compatible with each other and consistent with the plan presented by the assignee. In the case of a temporary or consortium grouping, this obligation lies with the agent. The site technical director is responsible for the compliance of the plan by all the companies involved in the execution of the works.

18. The subcontractor who makes use of the subcontract or piece size must attach to the authentic copy of the contract the declaration about the existence or otherwise of any forms of control or connection pursuant to Article 2359 of the Civil Code with the subcontract holder or of the piece. A similar declaration must be made by each of the participants in the case of a temporary grouping, company or consortium. The contracting authority shall issue the authorization referred to in paragraph 4 within thirty days of the relevant request; this deadline may be extended once only if justified reasons are met. After this deadline has elapsed, the authorization is considered granted. For subcontracts or piecemeal work of less than 2 per cent of the amount of the services entrusted or less than 100,000 euros, the terms for the issue of the authorization by the contracting authority are reduced by half.

19. The execution of the subcontracted provisions shall not form the object of further subcontracts.

20. The provisions of this article also apply to temporary groupings and also to consortium companies, when the joined or associated companies do not intend to directly perform the unbundling services; they also apply to credit lines with a negotiated procedure. For the purposes of the application of the provisions of this article, by way of derogation from Article 48, paragraph 9, first sentence, the establishment of the association in participation is permitted when the member does not intend to directly perform the services contracted.

21. The faculty is reserved for the regions with special status and for the autonomous provinces of Trento and Bolzano, on the basis of their respective statutes and the related implementing rules and in compliance with the Community legislation in force and with the principles of the Community legal order; to regulate further cases of direct payment by subcontractors.

22. The contracting authorities issue the certificates necessary for the participation and qualification referred to in Article 83, paragraph 1, and Article 84, paragraph 4, letter b), to the contractor, deducting the full value of the contract the value and the category of what was done through subcontracting. Subcontractors can ask the contracting authorities for certificates for the services actually performed.