Can the guidelines of the Community institutions which guide the choices of national legislators through regulations and directives always be said to be in line with the real needs of the market that are constitutionally guaranteed?
To what extent can the judicial authority review the choices of the administration which is endowed with a significant discretionary power for the management of a public contract?
These are the questions that fuel a highly interesting dispute pending before the Milan Tar, whose public hearing has been set for next 8 April.
The issue of the social clause, of EU origin, in the context of support services for demand management, supply and validation activities is the subject of the judicial investigation currently underway.
While waiting to define the merits of the dispute, the Tar with the Ordinance n. 82 of 21 January last took a "displacing" position on the "social clause" if one considers the object of the contract.
In fact, according to the Lombardy Tar, the support services for demand management, supply and validation activities present the characteristic of "high labor intensity" and, in effect, require the PA to prescribe the so-called "social clause".
The historical background from which the aforementioned dispute originates can be summarized as follows.
The announcement of a tender called by a PA for the award of support services to demand management, supply and validation activities was contested, following the award of the tender itself, by the second in the ranking due to the absence of the provision of the "social clause". The first in the ranking, in turn, in defending the advantageous position achieved in the tender, filed a cross-appeal arguing that the appellant should have been excluded from the competition given that the offer presented by the same does not contain one of the requirements set out in the tender specifications . Both appellants made a request for interim relief.
With the Ordinance in question, the Lombardy Regional Administrative Court accepted the precautionary requests, effectively suspending the award provision and postponing the case to 8 April for discussion of the merits.
The Ordinance of the Milan Tar lends itself to a reading of the art. 50 of the Procurement Code which, if confirmed, will put both public administrations and private individuals in serious difficulty.
The administrative judge, in fact, states that the support services for demand management, supply and validation activities are characterized by a completely limited activity of an intellectual nature. Indeed, they exhibit the characteristic of "labour-intensive".
According to this reconstruction, in fact, specialist services with digital content up to artificial intelligence should be assimilated to tenders for school canteens, train cleaning and facility management more generally. However, this approach does not take into account the circumstance according to which art. 50 of the Procurement Code establishes that the social clause must be included in the call for tenders when very particular product conditions occur, leaving the discretionary power to establish or not to establish this obligation to the Public Administration.
It is therefore evident that the institute of the "social clause" deserves great attention from the operators of the sector given that if not correctly interpreted it causes incurable problems.
The art. 50 of the Community-based Procurement Code recognizes ample operational space for the Contracting Stations and this on the assumption that the "social clause", where envisaged, ends up affecting the freedom of entrepreneurial organization envisaged and safeguarded in our legal system by art. 41 of the Constitution.
It is therefore desirable that the administrative judge does not cancel with a stroke of the pen the necessary guarantees of freedom for the company, thus neutralizing their effectiveness.
