The rotation principle: is the contracting authority obliged to exclude a contractor who has indicated the outgoing contractor as subcontractor?

Article 49 of Legislative Decree No. 36/2023 provides that contracts below the Community thresholds must be awarded in compliance with the principle of rotation, i.e. the prohibition of awarding the same contract to the outgoing contractor in cases of two consecutive awards.

Compared to the previous system, however, the new principle has been scaled down: previously, not only the awarding of the contract, but also the invitation to the outgoing contractor and to economic operators who had participated and had not won was prohibited; today, however, the prohibition applies only to the outgoing contractor. The rationale is to counterbalance the contracting authority's power to identify contracting parties in sub-threshold procedures and to avoid the consolidation of situations of advantage for certain economic operators to the detriment of others who would be deprived of an opportunity to gain.It follows that this principle does not operate in open procedures, or in substantially open procedures. In fact, paragraph 5 exempts contracting authorities if the market survey ‘was carried out without setting limits on the number of economic operators’.However, a question remains: does the rotation principle also apply if the outgoing contractor has been indicated as subcontractor?In the silence of the legislator, the ANAC resolution 344/2020, which considers that there is no obligation to exclude from the tender of a competitor who intends to indicate as subcontractor the economic operator that has a contract with the same contracting station, is still valid. For further elaboration:- Art. 49, legislative decree 36/2023;- Art. 36, legislative decree 50/2016;- ANAC, Guidelines, no. 4, par. 3.6;- ANAC, Resolution no. 334/2020;