Direct contracts below the threshold: the economic operator is required to comply with the obligation
The issue addressed by ANAC concerns the applicability of theart. 108, paragraph 9, of Legislative Decree 36/2023 to direct assignments of services, as in the specific case of a contract worth approximately 118 thousand euros for the maintenance of votive lamps in the cemeteries of the Municipality of Verona.
The Procurement Code, at theart. 50, paragraph 1, letter b), regulates the possibility of direct assignments for contracts below the threshold, while theart. 108, paragraph 9, establishes that, in the economic offer, the competitors must indicate the labour costs and the company charges relating to safety at work, unless it concerns supplies without installation or services of an intellectual nature.
ANAC has underlined that the current Code does not provide for general exemptions to the obligation to indicate such costs in direct contracts, unlike what was established by the previous Procurement Code (Legislative Decree 50/2016). The only exception allowed is, in fact, that relating to supplies without installation and to services of an intellectual nature. Therefore, even in direct sub-threshold assignments, the economic operator is required to comply with this obligation.
Mandatory indication of labor costs in all procedures governed by the Procurement Code
The ANAC, in its opinion, highlights that the provision contained in theart. 108, paragraph 9, of Legislative Decree 36/2023 it is imperative, that means that applies automatically even when the tender documents do not expressly provide for it. This principle, known as heterointegrationis governed by theart. 1339 of the Civil Code and allows for fill any gaps in the tender documents to ensure the application of mandatory rules.
The opinion also cites recent case law that has confirmed this orientation. For example, the Regional Administrative Court of Calabriawith the judgment no. 958 of 17 June 2024reiterated that the indication of labor costs is mandatory in all procedures governed by the Procurement Code, unless expressly derogated. Furthermore, case law underlines the importance of this obligation to ensure the protection of workers’ rights and transparency in tender procedures.
Another relevant aspect that emerged from the opinion is the principle of specificity of the causes of exclusion. Failure to indicate labor costs constitutes a cause for exclusion expressly provided for by law. Therefore, the contracting authority is forced to exclude from the tender, the competitor who omits this indication, without the possibility of resorting to the investigative assistance, as also confirmed by the TAR Calabria with the judgment no. 665 of 22 April 2024.
The implications for economic operators
The ANAC opinion has important practical repercussions for economic operators participating in direct award procedures. Although direct award is a simplified proceduredoes not exempt operators from the obligation to indicate labor costs. This represents a stringent constraint that, if not respected, can lead to exclusion from the contract.
Therefore, it is essential that economic operators pay maximum attention in preparing the economic offer, including a correct and detailed indication of the labour costs, in order to avoid sanctions and exclusion from the competition.
