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In brief

With judgment No. 4816 of 26 April 2021, the Administrative Court ruled on an appeal for the annulment of the final award of a Framework Agreement for the supply to public hospitals of digital mammography devices, related services, equipment and optional services. The appellant claimed that the successful bidder should have been excluded for the tender procedure for having unlawfully used a continuous cooperation agreement, pursuant to art. 105, paragraph 3, letter c-bis), of the Code of public contracts.

In this respect, the administrative judge clarified the difference between cooperation agreements and subcontracting, reiterating that cooperation agreements are characterized by subjective management, since they are rendered to the successful bidder, and by the subject matter of the agreement, which is different from the goods and services covered by the public contract. Therefore, cooperation agreements may only refer to those goods and services that the successful bidder needs in order to provide, on its own, the goods and service covered by the public contract and not directly to the public supply awarded. In other words, the Court established that it will be possible to confirm the legitimacy of a cooperation agreement if the successful bidder has limited itself to procuring the goods instrumental to the service to be rendered to the administration, while it will be a subcontract if it has entrusted the third party with the execution of a part of the service.

In the present case, the Court deemed that the use of the cooperation agreement for the performance of part of the contract directly in favor of the administration was illegitimate, since the relevant agreement created a direct relationship between the administration and a third-party entity whose compliance with the general and special requirements for participation in public tenders had not been ascertained.

Author

Roberto Cursano is a counsel in Baker Mckenzie since 2007 in Rome, Italy office. His practice focus more in pharmaceutical and healthcare law matters and compliance, and assists in tender procedures, the negotiation of public contracts and litigation before administrative courts.

Author

Riccardo Ovidi is an associate in Baker McKenzie's Rome office.

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