Integrated procurement: it is possible to replace the indicated designer, but without modifying the offer

|

Emma Potter

The role of the designer indicated

The Council of State had already clarified (Council of State sec. V, 27 July 2021, n. 5563) that the designer indicated by the company that made the offer, despite being a external subject to the economic operator and cannot be classified as a competitor, must meet general and special requirements necessary to participate in the race.

This clarification aligns with a line of jurisprudence which sees the designer indicated as a qualified technical collaborator who, despite not having the qualification of competitor, is actively involved both in the offer phase and in the execution of the contract.

The sentence expressly recalls the decision of thePlenary meeting n. 2 of 2022which had already established the possibility of changing the composition of temporary groupings in the event of one of the members losing the requirements. This possibility, already permitted for temporary groupings of companies, is now extended to the indicated designer.

Replacing the designer: permissibility and limits

One of the most relevant aspects of the ruling concerns the possibility of replacing the designer indicated in the event that this lose the requirements during the tender procedure. The Council of State stated that such a replacement is admissible, as long as it does not lead to a substantial modification of the offer. The Court has, in fact, established that the principle of reasonableness and proportionality does not justify worse treatment for the economic operator who uses an external designer compared to a temporary grouping which instead includes the designer as an integral part.

Although the substitutability of the designer is admitted in principle, it is essential that this modification does not substantially alter the content of the offer presentedas this would violate the principles of transparency and equal treatment between competitors. The Court therefore considered a case-by-case assessment appropriate, to ascertain whether the replacement involves a substantial change in the offerand also referred to community law in this sense.

Conclusions of the sentence

The Council of State believes not convincing the ruling of the CGARS (Council of Administrative Justice for the Sicilian Region) n. 276 of 2021where he claims that the replacement of the designer it would never have led to a change in the offeras the designer is considered an auxiliary of the competitor. The ruling in question, however, underlined how the designer, although external, is involved in both the drafting of the offer and the execution of the contract, and therefore his replacement can affect the offer itself.

In the case covered by the ruling, the Council of State has appeal rejectedconfirming the ruling of the Regional Administrative Court (TAR) which had canceled the awarding of the tender. The tender commission, in fact, had admitted the economic operator to the subsequent stages of the procedure despite the fruitless preliminary investigation activated due to the lack of requirements of the indicated designer. The Court held that the subsequent replacement of the designer, occurred after the award proposalwould have resulted in a substantial change to the offertherefore being illegitimate.

The ruling reiterates the importance of correct application of the requirements during the tender phase and the evaluation of subjective changes. Even allowing the replacement of the indicated designer, this cannot lead to a significant variation in the offer, under penalty of illegitimacy of the procedure. Economic operators must therefore pay maximum attention to the choice of your designersensuring that they maintain the required requirements for the entire duration of the race.

In summary, the Council of State reiterated that the replacement of the indicated designer is admissible, as long as there is no substantial modification of the offer, a principle that strengthens the criteria of transparency and equal treatment in public contracts.