Avvalimento And Non-EU Companies In Italian Public Procurement

What is the Avvalimento agreement?

Through an avvalimento contract, one or more auxiliary companies undertake to make available to an economic operator that lacks certain requirements required in a public tender the technical equipment, human resources, and instrumental means for the entire duration of the contract.

It is a fundamental legal instrument widely used in public procurement in Italy, especially by third-country companies and non-GPA countries companies wishing to participate in Italian public tenders without independently meeting all the requirements set out in the tender notice.

Through avvalimento, an economic operator may rely on the technical, economic, and organizational capacities of another company, known as the auxiliary company (generally an Italian company).

In summary, the avvalimento contract can be structured as follows:

• The assisted company (availing company): the economic operator that intends to participate in the public tender but does not directly possess some of the requirements required by the tender notice;
• The auxiliary company: the economic operator that makes its resources available to the availing company in order to fill the gaps and enable it to participate in the tender procedure.

How does avvalimento work in Italy?

Within the framework of Italian public procurement rules, the avvalimento contract must be executed in writing, under penalty of nullity, and must be attached to the tender offer, either in original or in a certified copy. The contract is onerous, meaning that the performance provided by one contracting party corresponds to a financial or economic benefit for the other party.

In the contract, the availing company must specify whether it intends to rely on the resources of the auxiliary company in order to acquire a participation requirement or to enhance its tender offer. Where the avvalimento contract is entered into to acquire a requirement necessary to participate in a public works contract with a value equal to or exceeding EUR 150,000, or in a services or supply contract, the availing company must also attach the SOA certification issued by the competent authority.

Although it is not mandatory for the avvalimento contract to specifically detail each item of equipment or the individual qualifications of the personnel made available, the contract must nevertheless allow for the clear identification of the exact resources made available to the availing company.

The contracting authority verifies whether the auxiliary company actually holds the declared requirements and whether any grounds for exclusion exist. Both the availing company and the auxiliary company must in any case meet the general reliability requirements, failing which exclusion from the tender procedure may occur.

More specifically, the new Italian Public Procurement Code provides:

1. Article 91(3) requires auxiliary companies to declare:
   a) that they meet the general requirements;
   b) that they meet the special requirements under Article 100 and, where applicable, the requirements under Article 103.
2. Article 104(4) requires auxiliary companies to declare:
   a) that they meet the general requirements under Chapter II of the relevant Title;
   b) that they meet the requirements under Article 100 for services and supplies;
   c) that they undertake, towards both the economic operator and the contracting authority, to make available the resources covered by the avvalimento contract for the entire duration of the contract.

The economic operator and the auxiliary company are jointly and severally liable towards the contracting authority in relation to the performance of the contract. In any event, the contract is performed by the company participating in the tender procedure, to which the certificate of execution is issued.

Can Non-EU Companies Use Avvalimento in Italian Public Procurement?

Article 69 of Legislative Decree No. 36/2023 allows non-EU economic operators to participate in public procurement procedures subject to the principle of reciprocity.

This means that, in the absence of specific acts adopted by the European Union, it is for the contracting authority to assess whether economic operators from a third country that has not concluded an international agreement with the EU ensuring equal and reciprocal access to public procurement should be admitted to a public tender procedure.

The main difficulties in accessing public procurement procedures arise for companies from non-GPA countries and for non-EU companies that are not signatories to the GPA (Government Procurement Agreement).

Indeed, Italian case law has repeatedly addressed this issue, holding that the exclusion of an economic operator—which, as an availing company, relied during the tender procedure on the resources made available by an auxiliary company from a country not signatory to the GPA—is unlawful where such exclusion is not based on an explicit prohibition of participation or avvalimento expressly set out in the tender documents.

Two fundamental principles apply in this area:

• Contracting authorities must apply to economic operators from third countries that are signatories to international agreements a treatment no less favourable than that granted to EU operators, as required by EU Directives.
• Italian law does not expressly provide for a general prohibition on the participation of companies from third countries, but allows the contracting authority to decide, on a case-by-case basis in the tender rules (lex specialis), whether to allow or—on reasoned grounds—to deny such participation.

In other words, access to the public procurement market by economic operators from countries that are not signatories to the GPA is not guaranteed, but neither is it absolutely prohibited.

Arnone&Sicomo – International Law Firm: How Can Help You

Our international law firm based in Italy provides comprehensive legal assistance to foreign companies participating in Italian public procurement, with a specific focus on avvalimento contracts, GPA and non-GPA countries, and market access strategies for non-EU bidders. We support clients in structuring compliant reliance (avvalimento) agreements, selecting suitable Italian or EU auxiliary companies, and ensuring full compliance with the Italian Public Procurement Code (Legislative Decree No. 36/2023) and ANAC requirements.

For foreign companies, especially non-EU and third-country operators, relying on a law firm specialized in Italian public tenders is essential to access the market lawfully, reduce legal risks, and maximize the chances of success.

From the analysis of the tender notice, to the preparation of procurement documentation, to representation in disputes and exclusion proceedings, our team assists foreign businesses at every stage of the Italian public tender process. Whether you are a non-EU company seeking to participate in Italian public contracts, a company from a third country outside the GPA, or an international operator exploring joint ventures, RTI, or avvalimento in Italy, our firm offers strategic, tailored, and results-oriented legal support.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.