Rewarding availment: from borrowing missing requirements to simply borrowing requirements

Under the previous code (Legislative Decree No. 50 of 2016), it was not permitted to make use of so-called 'pure' recourse to 'premium' availment, i.e. that had the sole purpose of giving the auxiliary a better evaluation of the offer, without the latter needing additional requirements or resources to participate in the tender.

This regime was superseded by the new public contracts code, which formalised the admissibility of this institution, overcoming the case law that had opposed it. In particular, Article 104 of Legislative Decree No. 36/2023 now allows for the use of outsourcing aimed not at participation, but at the exclusive attainment of the resources necessary for the attribution of incremental scores. In fact, paragraph 4, in confirming that the economic operator must enclose with the application to participate the availment contract, provides that it must specify whether it intends to avail itself of the resources of others to acquire the missing participation requirement or to improve its own offer. The rationale is thus broader than the previous one, which was strictly linked to the possibility of participation, and also includes the exclusive purpose of having the tender acquire a better evaluation. Thus, the factor of indispensability for the purposes of participation in the tender has disappeared, and outsourcing has become an institution that more generally concerns the loan of means (technical equipment and human and instrumental resources), also for the sole purpose of qualifying the tender in improved terms, expanding the technical, professional and financial capacity of the economic operator.For further details:Art. 104, paragraphs 4 and 12, legislative decree no. 36/2023;Cons. Stato, sec. V, sent. of 9.01.2023, no. 281.