Art. 48. Temporary groups and ordinary consortia of economic operators1. In case of works, for temporary vertical groups shall be intended a grouping of economic operators within which one of them realizes the works of the prevailing category; for unbundled works shall be intended those works as defined in Article 3, paragraph 1, letter (oo-ter) to be assumed by one of the principals; for horizontal group shall be intended a grouping of economic operators aimed at realizing works of the same category.
2. In case of supplies or services, for vertical group shall be intended a grouping of economic operators within which the agent provides services and supplies indicated as most important also in economic terms, while the principals execute secondary works or supplies; for horizontal group shall be intended a grouping where economic operators perform the same kind of provision; contracting authorities or entities shall indicate in the call for competition the most important and secondary provisions.
3. In case of works, temporary groups and ordinary consortia shall be admitted where the entrepreneurs participating to the group, or the associated entrepreneurs, have the requirements referred to in Article 84.
4. In case of works, supplies or services, in the tender shall be specified the categories of works or parts of the supply or service that will be executed by grouped or associated individual economic operators.
5. Tenders by grouped or associated economic operators shall determine their joint responsibility before the contracting authority or entity, as we33 as the subcontractor and suppliers. For those taking works to be unbundled and, in case of services and supplies, for those taking secondary provisions, the responsibility shall be limited to the execution of the provisions of respective competence, without prejudice to the joint responsibility of the agent.
6. In case of works, for horizontal temporary works, the requirements referred to in Article 84, provided that they can be separated, shall be possessed by the agent for works of the most important category and for the relevant amount; for unbundled works each principal shall possess the requirements provided for the amount of the category of works that it wishes to take and in the measure indicated for the individual competitor. Works that can be referred to the most important category or to unbundled categories may be also taken by entrepreneurs grouped in a horizontal temporary grouping.
7. It shall be prohibited to competitors to participate to the tender in different temporary groups or ordinary consortium of competitors, or to participate to the tender also in individual form where it has participated to the same competition in a group or ordinary consortium of competitors. Consortia referred to in Article 45, paragraph 2, letters b) and c) shall also indicate, when tendering, for which associated members the consortium is tendering; those members shall not participate, under any other form, to that same tender; in case of violation both the consortium and the consortium member shall be excluded from the competition; in case of lack of respect of this prohibition, Article 353 of the Criminal Code shall apply.
7-bis. For reasons indicated in the following paragraphs 17, 18 and 19 or for intervened facts or acts, subjects indicated in Article 45, paragraph 2, letters b) and c) may design for the execution of works or services, an associated enterprise different than the one indicated when tendering, provided that the subjective modification is not aimed at excluding in that phase the lack of a requirement for participation to the associated enterprise.
8. It is possible for subjects referred to in Article 45, paragraph 2, letters d) and e) to present tenders even when they are still not established. In that case the offer shall be subscribed by all the economic operators that will establishes the temporary groups or ordinary consortia of competitors and shall include the commitment that, in case of award, those same economic operators will confer special collective mandate with representation to one of them, to be indicated while tendering and qualified as agent, which will conclude the contract in the name and on behalf of itself and its principals.
9. The association in participation shall be forbidden both during the tender procedure and after the award. Without prejudice to what provided for in Articles 17 and 18, any modification in the composition of temporary groups or ordinary consortia of participants shall be forbidden with respect to that resulting from the commitment presented while tendering.
10. The lack of respect of the prohibitions in paragraph 9 shall lead to the annulment of the award or the nullity of the contract, as well as the exclusion of competitors associated in group or ordinary consortium of competitors, simultaneously or following the award procedures relating to the same contract.
11. In case of restricted or negotiated procedures, or competitive dialogue, the economic operator that has been individually invited, or the candidate that has been individually admitted in the procedure of competitive dialogue, shall have the possibility to present an offer or to negotiate for itself or as an agent of grouped operators.
12. For the purposes of establishing a temporary group, economic operators may confer, with a single act, collective special mandate with representation to one of them, called agent.
13. The mandate shall result from an authenticated private agreement. The relevant proxy shall be conferred to the legal representative of the economic operator acting as an agent. The mandate shall be free of charge and not revocable and its revocation for justified cause shall not have effect for the contracting authority or entity. In case of failure of the agent enterprise, the revocation of the special collective mandate referred to in paragraph 12 shall be allowed in order to allow the contracting authority or entity to pay directly the other enterprises of the group.
14. Provisions in this Article shall find application, where compatible, for the participation to the award procedures of aggregation of enterprises adhering to a network contract, as referred to in Article 45, paragraph 2, letter f); those enterprises, in case they have all the requirements of a stable consortium as referred to in Article 45, paragraph 2, letter c) shall be equalized to them for the purposes of the SOA qualification.
15. The agent shall have the exclusive representation, also in the process, of principals before the contracting authority or entity for all operations and acts of whatsoever nature depending from the contract, also after the testing, or equivalent act, until the extinction of any relationship. The contracting authority or entity may, however, claim the responsibilities attributable to principals.
16. The mandate relationship shall not determine in itself organization or association of grouped economic operators, each of them maintaining its autonomy for the purposes of management, tax and social obligations.
17. Without prejudice to what provided for in Article 110, paragraph 5, in case of default, mandatory administrative liquidation, controlled administration, extraordinary administration, preventive agreement or procedure of insolvency or liquidation of the agent or in case of individual entrepreneur, in case of death, interdiction, incapacitation or failure or in case of loss, during execution, of the requirements in Article 80, or in cases provided for by anti-mafia legislation, the contracting authority or entity may prosecute the contract relationship with another economic operator constituted as agent in the modalities provided for in this Code provided that it possesses the requirements of qualification adequate to works or services or supplies to be executed; where those conditions do not subsist, the contracting authority or entity shall withdraw from the contract.
18. Without prejudice to what provided for in Article 110, paragraph 5, in case of default, mandatory administrative liquidation, controlled administration, extraordinary administration, preventive agreement or procedure of insolvency or liquidation of one of the principals or in case of individual entrepreneur, in case of death, interdiction, incapacitation or failure or in case of loss, during execution, of the requirements in Article 80, or in cases provided for by anti-mafia legislation, the agent, where it does not indicate an incoming economic operator possessing the prescribed suitability requirements, shall execute, directly or by means of other principals, provided that they possess the adequate qualification requirements of the works or services to be executed.
19. The withdrawal of one or more associated undertakings from the contract shall be allowed, even when the grouping is reduced to a single subject, exclusively for the organizational exigencies of the grouping and provided that the remaining enterprises possess the requirements of qualification adequate to the works or services or supplies still to be provided. In any case the subjective modification referred to in the first period shall not be permitted when aimed at excluding the lack of a requirement of participation to the competition.
19-bis. Provisions in paragraphs 17, 18 and 19 shall find application also with reference to the subjects in Article 45, paragraph 2, letters b), c) and e).
19-ter. Provisions in paragraphs 17, 18 and 19 shall also find application where the subjective modifications thereby included occur while tendering.