Permanent consortium and business network
From a regulatory point of view, permanent consortia are listed among the economic operators in Article 45, paragraph 2, letter c of (Italian) Legislative Decree 50/2016 (Public Contracts Code). A permanent consortium consists of ‘an aggregation of not less than three consortium members who, by decision of their respective decision-making bodies, have decided to operate jointly in the field of public works, services and supply contracts for a period of not less than five years, setting up for this purpose a common business structure’.
The purpose of this institution is clearly pro-competitive, as it facilitates the aggregation of economic operators, even small ones, in order to allow them to participate in public procedures whose participation requirements, due to the importance of the contract, do not allow them to participate as individuals.
The qualification of permanent consortia is transitorily regulated by Article 36, paragraph 7 of (Italian) Legislative Decree 163/2006. Although repealed, ANAC, in a communiqué dated 31/05/2016, has indicated the temporary use of this article due to the fact that (Italian) Legislative Decree 50/2016 does not provide for indications applicable to the qualification of this type of economic operator.
Therefore, the permanent consortium qualifies on the basis of the certificates held by the individual consortium members: qualification is acquired with reference to a given category of general or specialised works, for the classification corresponding to the sum of those held by the consortium members. In order to qualify for the unlimited amount classification (VIII), it is in any case necessary for at least one of the consortium members to already have this qualification or that among the consortium members there is at least one with a qualification for classification VII and at least two with classification V or higher, or that among the consortium members there are at least three with qualification for classification VI. For qualification for design and construction services [omissis] it is in any case sufficient that the corresponding requirements are possessed by at least one of the consortium members. Where the sum of the classifications of the member companies does not coincide with one of the classifications referred to in the regulations, qualification shall be obtained in the classification immediately below or above the sum of the classifications held by the member companies, depending on whether that sum is below, above or equal to half of the interval between the two classifications respectively.
In order to qualify, the consortium must prove that it is in possession of the general requirements (Article 80 of the Code) and has its own technical director.
The duration of the SOA certification of permanent consortia is similar to that for other economic operators, i.e. five years, subject to verification that the requirements are maintained within the third year.
The SOA certificate will also show the intermediate expiry date, determined by the expiry of the SOA certificates held by the individual consortium members.
A company may only participate in one permanent consortium.
As regards participation in the same consortium of companies certified in stable pooling with other consortium members, the qualification requirement may be used by the consortium only once.
How the business network is certified
For the purposes of SOA qualification, aggregations between companies adhering to the network contract pursuant to Article 45, paragraph 2, letter f) of the Code, are equivalent to permanent consortia, as provided for in Article 48, paragraph 14 of the same Code.
Permanent consortia in tenders
For the purposes of participating in tenders, a consortium may participate by indicating the executive member to which it will assign the works in case of award of the contract, without prejudice to its joint liability towards the contracting authority: in such cases, consortium companies not indicated may participate in the same tender. Otherwise, a consortium may participate in tenders without having to indicate an executive member. In this case, the consortium partners may not participate in the same tender.
