Article 104. Validation.

1. Availability is the contract by which one or more auxiliary companies undertake to make technical equipment and human and instrumental resources available to an economic operator competing in a tender procedure for the entire duration of the contract. The availment contract is concluded in written form under penalty of nullity with specific indication of the resources made available to the economic operator. The availment contract is normally onerous, unless it also responds to an interest of the auxiliary company, and can be concluded regardless of the legal nature of the ties between the parties. 2. If the availment contract is concluded to acquire a necessary requirement to participation in a procedure for the award of a works contract for an amount equal to or greater than 150,000 euros, or a service and supplies contract, it has as its object the technical equipment and resources that would have allowed the economic operator to obtain the qualification certificate required. 3. If the availment contract is stipulated with an auxiliary company in possession of authorization or other qualification required for participation in the award procedure pursuant to article 100, paragraph 3, or with a person in possession of educational qualifications or professionals necessary for the execution of the service covered by the contract, the works or services are carried out directly by the auxiliary company. Provisions regarding subcontracting apply. 4. The economic operator attaches to the application for participation the original or certified copy of the availment contract, specifying whether it intends to make use of the resources of others to acquire a participation requirement or to improve its offer, and attaches, in the case referred to in paragraph 2, the certification issued by the SOA or the ANAC. The auxiliary company is required to declare to the contracting authority: a) that it is in possession of the general requirements referred to in Chapter II of this Title; b) that it is in possession of the requirements referred to in article 100 for the services and supplies; c) to undertake towards the economic operator and towards the contracting authority itself to make the resources covered by the availment contract available for the entire duration of the contract. 5. The auxiliary company transmits its qualification certificate in the case of validation aimed at acquiring the requirement for participation in a works award procedure. In case of false declarations, without prejudice to the application of article 96, paragraph 15, towards the signatories, the contracting authority assigns the competing economic operator a deadline, not exceeding ten days, to indicate another suitable auxiliary company , provided that the replacement of the auxiliary company does not lead to a substantial modification of the economic operator's offer. In the event of failure to comply with the assigned deadline, the contracting authority excludes the economic operator. 6. The contracting authority verifies whether the auxiliary company is in possession of the requirements declared in the manner referred to in articles 91 and 105, the latter with regard to the means of proof and the online register, and if there are causes for exclusion pursuant to Chapter II of this Title. The contracting authority allows the economic operator to replace subjects who do not satisfy a relevant selection criterion or for whom there are reasons for exclusion. 7. The economic operator and the auxiliary company are jointly liable towards the contracting authority in relation to the services covered by the contract. The obligations established by the anti-mafia legislation on the economic operator also apply to the auxiliary entity, based on the amount of the contract based on the tender. 8. The contract is in any case executed by the company participating in the tender, to which the execution certificate is issued, except as provided for in paragraph 3. 9. In relation to each assignment, the contracting authority in progress carries out substantial checks regarding the actual possession of the requirements and resources object of the availment by the auxiliary company, as well as the effective use of the same resources in the execution of the contract. To this end, the RUP ascertains during construction that the services covered by the contract are carried out directly by the human and instrumental resources of the auxiliary company that the contract holder uses in fulfillment of the obligations deriving from the availment contract. Furthermore, it has the obligation to send both parties to the availment contract the communications pursuant to article 29 and those relating to the execution of the works. The contracting authority transmits to the Authority all the declarations of availment, also indicating the successful tenderer, for the exercise of supervision and for the required advertising. 10. The availment is not permitted 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. In the case of works contracts, service contracts and laying or installation operations within the framework of a supply contract, contracting authorities may provide in the tender documents that certain essential tasks, including works for which works or components of notable technological content or significant technical complexity are necessary, such as structures, systems and special works, are carried out directly by the tenderer or, in the case of an offer submitted by a group of economic operators, by a participant in the grouping. 12. Only in cases where the use is aimed at improving the offer, it is not permitted for the auxiliary company and the one that uses the resources made available by it to participate in the same tender. EFFECTIVE FROM: July 1, 2023