Temporary Joint Ventures in Public Procurement: Execution Shares, Subcontracting, and Bid Congruity
Abstract
This in-depth thematic study examines the legal framework governing Temporary Joint Ventures (RTI) in public service and supply contracts under Legislative Decree no. 36/2023, following the landmark ruling of the Italian Council of State, Section V, judgment no. 6702 of 19 August 2026. The paper systematically investigates the elimination of mandatory symmetrical correspondence between qualification quotas, participation shares, and execution percentages in services and supplies under Article 68, highlighting the protective role of joint and several liability under paragraph 9. The analysis addresses the fine distinction between subcontracting under Article 119 and autonomous contracts for work under Article 2222 of the Italian Civil Code, the stringent standards for subjective corporate modifications and mandate expulsions under Article 97, the non-peremptory nature of anomaly verification deadlines under Article 110 governed by the principle of outcome, and the delicate equilibrium between economic bid secrecy and effective judicial review during technical reassessments.
Key Legal Takeaways
- Absence of symmetrical correspondence in services: Article 68 of Legislative Decree no. 36/2023 does not require symmetrical correspondence between qualification quotas and execution shares in public service and supply contracts; instead, the default rule of cumulative fulfilment of requirements by the joint venture as a whole applies.
- Joint and several liability as a public safeguard: The statutory regime of joint and several liability under Article 68(9) neutralises default risks and fully protects the contracting authority.
- Self-employed work versus subcontracting: Services rendered by self-employed practitioners lacking an autonomous business organisation constitute an independent contract for work ( contratto d'opera ) under Article 2222 of the Italian Civil Code rather than subcontracting under Article 119.
- Abnormally low tender review and principle of the result: Procedural time limits for assessing bid congruity under Article 110 are directory rather than peremptory, while cost explanations submitted during review may never alter the substantive technical tender.
