Art. 89. Reliance on the capacities of other entities (“Avvalimento”)

1. The economic operator, individually or in group, referred to in Article 45, for a certain contract, may meet the requirement relating to the possession of the requirements relating to economic, financial, technical and professional standing as set out pursuant to Article 83, paragraph 1, letters b) and c), necessary to participate in a procurement procedure and, in any case, with the exception of requirements referred to in Article 80, relying on the capacities of other entities, even participating to the grouping, regardless of the legal nature of the links which it has with them. With regard to criteria relating to the educational and professional qualifications as set out in Annex XVII Part II, letter f) or to the relevant professional experience, economic operators may however only rely on the capacities of other entities where the latter will directly perform the works or services for which these capacities are required. The economic operator which wants to rely on the capacities of other entities shall attach, additionally to the possible certification of the auxiliary undertaking, a declaration signed by that same undertaking attesting the possession of the general requirements referred to in Article 80 as well as of the technical requirements and the resources object of the reliance. The economic operator shall prove to the contracting authority that it will have at its disposal the resources necessary by producing a commitment signed by the auxiliary undertaking through which it commits itself to the tenderer and the contracting station in order to make the necessary resources of whom the tenderer is lacking available for the entire duration of the contract. In case of false declarations, notwithstanding the application of Article 80, paragraph 12, to the subscribers, the contracting station shall exclude the tenderer and realize the value. The tenderer shall also attach to the request of participation either in original or authentic copy the contract by virtue of which the auxiliary undertaking commits itself towards the tenderer in order to make the requirements and necessary resources available for the entire duration of the contract. To that end, the contract of reliance contains, on pain of nullity, the specification of the requirements provided and of the resources made available by the auxiliary undertaking.

2. In the special sectors, if the objective rules and criteria for the exclusion and selection of economic operators requiring qualification in a qualification system include requirements relating to the economic and financial capacity of the economic operator or his technical and professionals, he may rely , if necessary, on the capacity of other persons, regardless of the legal nature of the links with them. The provisions of subsection 1, second and third periods, are to be understood as to be understood as referring to the period of validity of the qualification system

3. The contracting authority or entity shall, in accordance with Articles 85, 86 and 88, verify whether the entities on whose capacity the economic operator intends to rely fulfil the relevant selection criteria and whether there are grounds for exclusion pursuant to Article 80. It shall require that the economic operator replaces entities which do not meet a relevant selection criterion, or in respect of which there are compulsory grounds for exclusion. In the call for competition there may also be an indication of cases in which the economic operator shall substitute an entity in respect of which there are non-compulsory grounds for exclusion, provided that technical requirements are concerned. The tenderer and the auxiliary undertaking are jointly responsible towards the contracting station with regard to the provisions object of the contract. The obligations provided by the anti-mafia legislation upon the contractor shall also apply with reference to the auxiliary undertaking on account of the amount of the contract as object of the competition.

4. In the case of works contracts, service contracts and siting or installation operations in the context of a supply contract, contracting stations may provide in the procurement documents that certain critical tasks shall be performed directly by the tenderer itself or, where the tender is submitted by a group of economic operators, by a participant in that group.

5. The competitor and the auxiliary company are jointly and severally liable to the contracting authority for the services covered by the contract. The obligations foreseen by the anti-mafia legislation against the competitor also apply to the auxiliary subject, based on the amount of the tender placed on the basis of the tender.

6. The use of several auxiliary companies is permitted. The auxiliary can not avail himself of another subject.

7. In relation to each tender, it is not allowed, under penalty of exclusion, that more than one competitor is used by the same auxiliary company, or that both the auxiliary company and the one that makes use of the requisites participate.

8. The contract is in any case carried out by the undertaking participating in the tender, to which the certificate of execution is issued, and the auxiliary company can assume the role of subcontractor within the limits of the requisites provided.

9. In relation to each assignment, the contracting authority carries out the substantial verifications in progress of the actual possession of the requisites and resources subject to the transfer by the auxiliary company, as well as the effective use of the same resources in the execution of the contract. For this purpose, the sole manager of the procedure ascertains during the course of work that the contracted services are performed directly by the human and instrumental resources of the auxiliary company that the contract holder uses in fulfillment of the obligations deriving from the utilization contract, under penalty of termination of the contract. It also has the obligation to send to both parties of the contract of use the communications referred to in Article 52 and those related to the execution of the work. The contracting authority transmits to the Authority all declarations of use, indicating also the successful bidder, for the exercise of supervision, and for the prescribed advertising.

10. Reliance on the capacities of other entities is not allowed to satisfy the requirement of registration in the National Register of Environmental Managers referred to in Article 212 of Legislative Decree 3 April 2006, n. 152.

11. Reliance on the capacities of other entities is not allowed if the works or objects of considerable technological content or of significant technical complexity, such as structures, plants and special works, are necessary for the purpose of the contract or the granting of works. It is considered relevant, for the purposes of the existence of the assumptions referred to in the first period, that the value of the work exceeds ten percent of the total amount of the work. By decree of the Minister of Infrastructures and Transport, to be adopted within ninety days from the date of entry into force of this code, after consultation with the Board of Public Works, the list of the works referred to in this paragraph and the specialization requirements are defined. required for the qualification for the purpose of obtaining the qualification certification of the performers referred to in Article 84, which may be periodically revised. Until the date of entry into force of said decree, article 216, paragraph 15 applies. see Decree of the MIT no. 248 of November 10, 2016, published in the Italian Official Gazette no. 3 of January 4, 2017 relating to super-specialist work categories