In turn, Article 37 of Annex II.12, Part V, of the Code establishes that:
“1. For the purposes of participating in the procedures for the awarding of services relating to architecture and engineering referred to in Article 66 of the Code, the subjects referred to in paragraph 1, letter e), of the aforementioned Article are required to include in the corporate purpose the provision of services relating to architecture and engineering.
2The subjects referred to in paragraph 1 are required to:
a) prepare and update its organizational chart including the people directly employed in carrying out professional and technical functions, as well as quality control, with an indication of specific skills and responsibilities, including, taking into account its legal nature:
1) legal representative;
2) administrators;
3) members, founding members, associates;
4) employees;
5) consultants on an annual basis, with VAT number, who sign the projects, or the project verification reports, or are part of the works management office and who have invoiced to the subjects referred to in paragraph 1 a share greater than 50 percent of their annual turnover, resulting from the latest VAT declaration;
b) have at least one technical director, formally consulted by the administrative body of the entities referred to in paragraph 1 for the definition of their strategic directions, and for participation in tenders for the assignment of engineering and architectural services, with functions of collaboration and control of the performances carried out by the technicians in charge of the designs.
3. The technical director referred to in paragraph 2, letter b), must possess the following requirements:
to) degree in engineering or architecture or in a technical discipline relevant to the type of technical services to be provided;
b) enablement to the exercise of the profession for at least ten years as well as registrationupon taking up office, to the relevant professional register provided for by the current legislation, or authorization to practice the profession according to the rules of the European Union State to which the person referred to in paragraph 1 belongs;
c) be in compliance with contribution obligationsinsurance and professional development activities required by current legislation.
4The subjects referred to in paragraph 1 delegate the task of approve and countersign the technical documents relating to the services that are the subject of the assignment to the technical director or to another engineer or architect dependent on them and having the same requirements. The approval and signature of the documents entail the joint liability of the technical director or the delegate with the aforementioned subjects towards the contracting station.
5. Without prejudice to the provisions of the DURC by current legislation, or by the certificates of regularity issued by the relevant social security institutions not adhering to the one-stop social security system, the professional activities performed by the subjects referred to in paragraph 1 are subject to the supplementary contribution if provided for by the legislative provisions regulating the relevant category social security fund to which each signatory of the project refers by virtue of compulsory registration in the relevant professional register. Said contribution is paid pro rata to the respective funds according to the statutory provisions and regulations in force”.
Requirements needed to be awarded public contracts for engineering or architectural services
To summarise, the requirements that must be possessed by the subjects referred to in art. 66, paragraph 1, letter e) who intend to be entrusted with public contracts for engineering or architectural services are the following:
- L’corporate purpose must include the provision of services relating to architecture and engineering;
- a system must be prepared and regularly updated organization chart in which the following must be indicated: “people directly employed in carrying out professional and technical functions, as well as quality control, with an indication of specific skills and responsibilities”;
- within the company structure at least one technical director must be present (consulted by the administrative body for the definition of strategic directions and for participation in tenders for the assignment of engineering and architectural services, with functions of collaboration and control of the performances carried out by the technicians in charge of the designs), which, in turn, must be in possession of certain requirementsincluding a degree in engineering or architecture, a qualification to practice the profession for at least ten years, as well as registration, at the time of taking up the position, in the relevant professional register and being in compliance with the contribution, insurance and professional development obligations required by current legislation;
- the task of approve and countersign the technical documents relating to the services which are the object of the contract must be delegated to the technical director or to another engineer or architect employed by the same subjects and having the same requirements.
A concrete case of absence of explicit corporate purpose
In light of all the above, the TAR Sicily, Catania, section IV, in the sentence of 28 June 2024, n. 2336considered that the provision of the statute of a university which merely confers on that body the generic possibility of stipulating professional consultancy and service contracts in favour of third parties it is not sufficient to allow the possibility of providing services related to architecture and engineering, precisely because lack of explicit provision.
In other words, if it is true that the statutory provision can be interpreted in the sense that the university is authorised to provide services to third parties by stipulating contracts and, therefore, also by becoming the successful tenderer for a public contract, it is also true that this possibility, in contrast with the legislative provision referred to, It does not also apply to procurement contracts relating to architectural and engineering services.
On this point, it is worth reiterating that the literal and more restrictive interpretation of art. 37, paragraph 1, of Annex II.12, Part V, of the Procurement Code finds its justification in the fact that theIncluding in the corporate purpose the possibility of offering engineering and architectural services on the market must not be considered a mere formal fulfillment but, on the contrary, due to the sensitivity of the services in question and the high level of professionalism required to guarantee the quality of the services, it is a first necessary requirement to guarantee the seriousness and reliability of the economic operator who intends to participate in a public tender procedure relating to an engineering or architectural service.
The judges also specified that “The letter of art. 37, paragraph 1, of Annex II.12, Part V, of the Code, in application of the criterion of strict interpretation referred to above, is in fact clear in establishing that the provision by which entities are authorised to provide services relating to architecture and engineering must be contained in the corporate purpose (and therefore, in application of the analogical interpretation rule, for entities that do not have a corporate form within the articles of association) and not, instead, in hierarchically subordinate regulatory acts.”.
