According to art. 66 DPR 21 December 1999, n. 554, relating to economic conditions - financial and technical - to participate in organizing design contests, those requirements are, inter alia, defined with respect:
'd) the average annual number of technical staff in the last three years (including active partners, employees and consultants under contracts coordinated and continuous collaboration on an annual basis), to an extent varying between 2 and 3 times the estimated unit in the contract for the performance of their duties. "
The legal issue concerns the interpretation of the term 'average annual number of technical staff in the last three years. "
Whether this requirement is met by calculating an average number of personnel on an annual basis, for each year of the three years, or by calculating the average number over three years, then divided for three years.
The first solution is more rigorous and favors competitors that have a large number of employees already at least three years.
It is thus a solution that helps competitors in a technical capacity - organizational stable over time and not only carried out closer to the date of the contract. The second solution
instead favoring competitors who are "grown" as the number of employees even in the period immediately preceding the date of publication of the contract.
The Board considers that it should adhere to the first interpretation, also followed by the TAR, both alla luce del dato letterale, sia alla luce della ratio legis.
Invero, la norma si riferisce al «numero medio annuo» del personale, e dunque mostra di chiedere il calcolo di una media annuale autonoma e distinta per ciascun anno del triennio.
Se la media andasse calcolata con riguardo al triennio, sarebbe stato sufficiente parlare di numero medio di personale nell’ultimo triennio.
Sotto il profilo della ratio legis, la prima soluzione dà maggiori garanzie dell’effettiva capacità tecnico – organizzativa del concorrente, meglio soddisfacendo lo scopo perseguito dalla norma.
Si deve perciò concludere che l’art. 66, lett. d), DPR 21 December 1999, n. 554, it states that economic conditions - financial and technical - to participate in organizing design contests, are defined with respect "to the average annual number of technical staff in the last three years" shall be interpreted as meaning that the average number of employees required the notice must be calculated separately for each year of the triennium and must be held for each of three years.
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dell'AVCP by Resolution No. 29 of 26.02.2007:
"Under Article 42, paragraph 1, letter g) of d. Legislative Decree No. 163/2006, one of the ways to demonstrate technical capability in the procurement of services is through "an indication of the average annual number of employees of the competitor and the number of managerial staff over the past three years."
The term "average annual manpower company, the last three years" can only relate to the average annual allocation for each year of reference, which must be held for each of three years.
fact, as explained in the ruling Council of State No 1774/2003, with which the Board has interpreted the term "average annual number of staff in the last three years" in Article 66, paragraph 1, letter d) of Presidential Decree 554/1999, where it is had wanted to extract an average value with respect to the three-year period, "would have been enough talk about the average number of staff in the last three years."
This interpretation applies to the "literal method" to the words used in the clause that question in their semantic value according to the general language use.
This does not contradict the assertion by case Council of State No 37/2007, whereby, in adherence to the guidance regarding the Civil Cassation, the canons of interpretation of the clauses of the tender are those inferred by articles 1362 et seq. the Civil Code. The literal method is the first and most important tool in the interpretation process of a transaction (Cass. Civ. Sect. I, 22.12.2005 No 28 479), but must be integrated with the objective pursued by the clause if which the element is not literally run out and absorb any other criterion of interpretation.
The clause in question does not, however, elements of ambiguity, under which, pursuant to article 1369 cod. Civ., expressions that may have more meaning, have if in doubt, be understood in the most convenient to the nature and object of the contract. Moreover, even taking into account the need for "the wording is checked against the context of the entire contract" (Cass. Civ. Cit.) And "having to rebuild in any case the intent of the administration" (TAR Veneto, Venice, sect. III, 09/26/2006 No. 3076), shows that the contractor selection procedures the administration is required to identify the perpetrator of the contract on the basis of a choice that gives the strongest possible guarantees, within reason of technical capacity organizational enterprise.
2. reference to the definition of "organic", it should be noted that in this term, for the purposes of affecting the case, only the part of employees, permanent and temporary, and that hinged on a regular and permanent staff in the enterprise under of an employment relationship. In this sense, it is expressed in the 'No Authority with determination 8 / 2002 , relating to qualification requirements, which addresses a general nature shall apply by analogy to the case. Therefore remain outside, quasi-subordinate employees, attributable in self-employment (see circular of the Department of Public 15.7.2004 No 4) and consultants and other types of atypical workers.
It should be noted, finally, that in the calculation of average annual plan, all employees shall be calculated that in the year, have worked independently of the completed portion of the year. "
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Ministry Infrastructure, Department for Infrastructure, General Affairs Directorate General and the staff to adjust and the Public Contracts Div IV Circular No 4649 of November 12, 2009, has issued the "clarification of the application of the provisions of art. 253, paragraph 15 bis of Legislative Decree no. April 12, 2006, No. 163."
This transitional rule (in force until December 31, 2010), introduced by the third corrective decree (No. 152 of 2008) and extended to March 31, 2011 by Decree milleproroghe, for engineering services and architecture, and for the demonstration of technical-professional requirements and viability for the award of contracts for the design, coordination of safety in design, construction supervision and coordination safety during construction and testing (Article 91 of the Contracts Code).
see also: Regional Administrative Court of Puglia (Section One) No sentence 967 of 2005
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