Loans below the threshold: when it is possible to derogate from the rotation principle

Recognition of the type of contract

The recognition of the type of contract, therefore, is identified according to three factors:

• same product sector (therefore CPV supplies);
• same category of works (works therefore categories OG and OS);
• same service sector (always CPV).

The identification of any analogy of the assignments is, therefore, attributable to certain data which already sees both the works and the services and supplies codified, without any possibility of error with respect to the areas to which the works, services or products belong.

Preparatory tools of the contracting authority

For the purposes of carrying out the activities of the contracting authority, a first suggestion, of an operational nature, consists of the preparation of:

• lists of professionals divided by different types of professional services;
• internal regulations of the contracting authority with the operational requirements for the various design, works management, testing and safety phases that may be necessary;
• bands for the assignment based on the economic value so as to be able to apply the rotation verification only to the homogeneous bands.

However, the derogatory condition to the indicated principle remains applicable and is based on the possibility of demonstrating and motivating the reasons for the failure to apply the rotation:

In detail it concerns:

• refer to the market structure and the actual absence of alternatives, as well as the quality of the service provided and accurate execution of the previous contract; in these cases the outgoing contractor can be reinvited or be identified as the direct custodian;
• for negotiated procedures for works and services (sub-threshold – contracts awarded with the procedures referred to in article 50, paragraph 1, letters c), d) and e), the rotation principle can be disapplied when the market survey has been carried out without placing limits on the number of economic operators in possession of the required requirements to be invited to the subsequent negotiated procedure;
• to derogate from the application of the rotation principle for direct assignments of amounts lower than 5,000 euros.

The reason for the exemption

With reference to a series of judicial pronouncements (ex multis sentence C. Stato 8030/2020) following the entry into force of the previous Legislative Decree 50/2016 (now repealed), some elements of objective validity and concrete usefulness for contracting authorities were recognised, which could constitute suitable conditions for sub-threshold assignments entrusted continuously to the outgoing contractor in the interest and in consideration of objective aspects that are entirely acceptable and aimed at implementing more logical dynamics both from a technical, economic and temporal.

In this sense, the ruling of the Council of State n. 4897 of 5 June 2025 can represent a significant moment of synthesis confirming what has been indicated so far. In a proceeding in which the Council of State had to rule on the legitimacy of a new assignment directed to the same outgoing contractor receiving the previous assignment relating to a similar service, the express recognition of illegitimacy referred to the applicability of article 36 of Legislative Decree 50/2016 which provided for the activation of the rotation principle in the presence of continuous assignment which in any case would have required a negotiated procedure, since, moreover, there was no possibility of invoking the application of the derogation provided for by article 49, paragraph 4 of Legislative Decree 36/2023 due to inapplicability of the rule ratione temporis (the direct assignment was arranged in 2022).

The reasons for this ruling reinforce what is now established by Article 49, paragraph 4 of Legislative Decree 36/2023 in relation to the possibility of derogating from the principle, but on the condition that a motivation focused on the factors of:

• possibility of re-inviting the outgoing contractor with direct assignment;
• quality of the service provided – operator reliability;
• lack of alternatives;
• economic convenience;
• reductions in execution times.

The reference to these aspects fulfills a primary objective which remains that of the realization of the assignment in full regulatory regularity without determining forcing or critical conditions, simplifying the methods of choice that can contribute to a more effective management of identification of the contractor which remains, however, strongly anchored to the constraints of transparency, good faith and access to the market.