The content of art. 51 of Legislative Decree no. 50/2016 (Italian Public Contracts Code) establishes the division into lots of public tenders, in order to facilitate access to small and medium-sized enterprises (so-called SMEs) while providing for the possibility of avoiding this division following an articulated motivation that justifies the choice made.
This provision is aimed at shaping the organizational profiles of the client administration in the direction of a broader perspective of the pro-competitive development of the market.
Therefore, the legislative favor for the subdivision into lots is the direct implementation of the vision set out in recital n. 78 and 79 of Directive 2014/24 / EU, for which << it is appropriate that public procurement be adapted to the needs of small and medium-sized enterprises >>.
Nevertheless, the administrative courts have ruled out that the subdivision into lots can be considered an absolute and mandatory principle, recognizing the possibility of opting for an alternative arrangement through a choice guaranteed by wide discretion, which must be justified, but remains open to question only within the limits of reasonableness and proportionality, as well as the adequacy of the investigation.
However, the choice of the contracting authority regarding the subdivision into lots of a public contract constitutes a decision normally anchored in assessments of a technical-economic nature.
In order for the action of the contracting authority to be considered legitimate, it is necessary to verify whether the modus operandi complies with the legal model, where the latter admits the derogation from a subdivision into lots of the contract strictly respectful of the participatory interest of small and medium-sized enterprises, subject to: 1) compliance with the motivational obligation, by means of an adequate illustration of the reasons underlying the subdivision into lots concretely arranged; 2) to verify the logic and plausibility of the same, in relation to the public interest pursued in practice.
The choice of the contracting authority regarding the subdivision into lots of a public contract must constitute a decision that is functionally coherent with the complex of public and private interests involved in the procurement procedure, to be assessed within the overall framework of the principles of proportionality and reasonableness.
It follows that the decision of the contracting authority to aggregate the tender in a small number of lots of a considerable amount, to the detriment of SMEs, does not appear unreasonable or contrary to the principle of proportionality, as the contracting authority may have an interest in interfacing with a single interlocutor, and only a company or a grouping of large companies is able to guarantee the correct execution of a service that requires a particular organization to carry out a complex of interconnected activities (see sentence of the Council of State no. 8440/2020 made public on 28.12.2020).
Avv. Alfredo Iadanza Lanzaro
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