**4. The tools for the promotion and protection of competition in public contracts**

Competition has a direct impact on the law on public contracts and contributes to defining the field of application. This holds true for both the objective and the subjective spheres of the rules.

With regard to the first aspect, importance is taken on by the procedure of exemption from the application of the European provisions on public contracts relative to special sectors, aimed at ascertaining whether the activity "is directly exposed to competition on the freely accessible markets" [22].

The special sectors are those of electricity, gas, water, transport, ports and airports and the postal system, in which elements of natural monopoly are present (infrastructures that are, in antitrust jargon, essential facilities). For this reason they are not subject to European sector discipline, usually administered by independent authorities and regulations, aimed at creating the legal conditions to open the sector to competition [23].

in the second case). The behaviour aimed at obtaining supra-competitive profits or other benefits that cannot be obtained in a competitive situation (exploitation abuse) or at preventing the entry or the survival on the market of rival operators (impediment abuse) is abuse.

Concentrations of companies, however, are not in themselves banned, but they are subjected to a prior antitrust control procedure which can result in the companies being banned from carrying out the operation reported when it is found that this can create or reinforce a domi-

The responsibility for supervising the application of the antimonopoly legislation in Italy is attributed to Independent Administrative Authority, the antitrust authority that guarantees competition and the market (Italian abbreviation: AGCM). The functions that the said authority performs and the powers that it exercises differ according to whether the operations in question are to form concentrations, to enter into agreements or to abuse a dominant position. In the first case, the authority subjects the reported operation to a prior control which can conclude in the full and unconditioned authorisation of the said operation, a conditioned authorisation subject to compliance with certain prescriptions imposed by the authority or a ban on the execution of the operation. In the second case, instead, the authority, finding an infringement of the antitrust rules, orders the company to cease the prejudicial behaviour, possibly also prescribing specific types of behaviour or structural measures necessary to restore the competitive functioning of

The antitrust authority must also ensure the local application of the European antitrust provisions. In this case, specific rules govern the coordination between the national authority and

The national authority's power is not exclusive, however, inasmuch as the courts also have power in the case of lawsuits for nullity, claims for compensation for damages and petitions for urgent court orders in the case of anticompetition agreements, in compliance with Arts. 101-102 TFUE [20]. The maintenance of this "double track" of jurisdiction is justified by the fact that the antitrust authority and the ordinary courts must protect different interests and therefore their work must be considered separate and autonomous. As has been stated, "the public enforcement entrusted to the antitrust authority pursues, in the interests of society as a whole, the protection of competition as a constitutionally protected form of market, whereas the need to protect the interests of private subjects prejudiced by the anticompetition behaviour of companies is achieved by the

adoption of the provisions set out in Art. 33 of Law 287/90 by the ordinary courts" [21].

Competition has a direct impact on the law on public contracts and contributes to defining the field of application. This holds true for both the objective and the subjective spheres of the rules. With regard to the first aspect, importance is taken on by the procedure of exemption from the application of the European provisions on public contracts relative to special sectors, aimed at ascertaining whether the activity "is directly exposed to competition on the freely accessible

**4. The tools for the promotion and protection of competition in** 

the market, and, in the more serious cases, it issues administrative sanctions.

nant position on the market.

104 Public Management and Administration

the commission.

**public contracts**

markets" [22].

The model is based on the idea that if one of the sectors is subjected to the same competitive pressure of nonregulated markets, this eliminates the risk of the operators' purchasing policy being distorted by noneconomic factors. Therefore, the special rules that oblige contractawarding bodies to respect the several times mentioned European principles of *par condicio* and of transparency and publicity become superfluous [24].

The exemption procedure is in the hands of the European Commission and involves an assessment between the market of the activity in question, of the geographic market of reference and of the full implementation and application of the sector legislation of the union. The criteria to assess the competition of the market are laid down by the provisions of the Treaty on the Functioning of the European Union, and they include "the features of the products or services in question, the existence of alternative products or services that can substitute the former on the demand or the offer side, the prices and the effective or potential existence of the products or services in question" [25].

An exemption request must be made by a single member state (but also, if allowed by national legislation, by the single contract-awarding body), and it must contain information on all the pertinent circumstances, including the state of implementation of the sector European legislation, in order to demonstrate that access to the market "is free in fact and in law" [26]. In the procedure, an assessment may be obtained from the independent supervisory authority.

To sum up, the market analysis tools typical of antitrust law influence, according to the results of the assessment which not by chance is in the hands of the European Commission appointed to apply the antitrust laws, the field of application of European law on public contracts. The sector of activity, to which an exemption provision is applied on the result of the abovedescribed procedure, always remains, as is also the case for the deregulated markets, subject to "the application of the legislation on competition" [27].

A similar important justification holds firm to also delimit the subjective profile of European law on public contracts, which is to say the European notion of a public law body, already present in the Public Contract Code and also in the packet of the European directives [28].

As it is known, the public law bodies are included among the "contract-awarding administrations", i.e. the public administrations in the strict sense (countries, territorial bodies, noneconomic bodies, etc.) to which the stricter publicity rules are applied because there is a greater risk of the purchasing policy being conditioned by noneconomic reasons [29].

The public law body is identified on the basis of three parameters: it must have legal personality, whether it is public or private; it must be subject to a dominating influence on the part of a public administration; and it must have been established to satisfy needs of general interests of a non-industrial and non-commercial nature, i.e. as a rule it produces public goods or public services according to a non-market logic.

Above all, this last parameter has given rise to interpretative uncertainties and varying case law interpretations, sometimes more extensive and sometimes more restrictive [30].

efficiency of the administrative activity also the pro-competition laws underlying the selection of the public administration's economic counterparties and the introduction of rules that prevent the contract-awarding bodies from unilaterally avoiding the contractual restrictions and the responsibilities that bear on every market operator, by exploiting authoritative powers that take on the semblance of intolerable privileges if used to alter the balance of equal

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European and national law on public contracts [33] answers, among other things, the need to ensure transparency and equal conditions among the operators of the markets of reference. Both the bidders in tender procedures and the economic operators of the connected markets have the right [34] to pretend that the administration acts in a manner to ensure transparency and equal conditions and, therefore, the said operators are entitled to impugn the deeds of a

The rules of public evidence thus take on a pro-competitive function. Consequently, the implementation provisions of these rules, when they do not achieve the said purposes, simul-

From another aspect, it must be noted that a call for tenders and the following procedure delimit a specific market within the wider market of reference, and that in one case as in the other, the bordering markets up- and downstream are involved, in which free competition in relation to the purchase of goods and services instrumental to the performance, being goods and services inferred in the tender procedure, must also be safeguarded. Consequently, if the deeds that discipline the tender procedure (calls for tenders, specifications, regulations, etc.) require the bidders to equip themselves, for the contractual activity, with machines or apparatuses that have certain features for the purpose of admission to the bidding or to be awarded a higher score, the principle of the equality of the bidders is prejudiced and, at the same time, competitive parity among the companies that produce the goods with which they

Consequently, the prejudiced companies will be entitled to request protection also from the

The said principle is also based on the freedom of economic activity sanctioned by Art. 41 of the Constitution and on the connected freedoms of establishment and of the circulation of goods and of services, legalised by the TFUE, which must be respected by the member states, which, as it is known, must "adopt every general or specific measure to ensure compliance with the obligations of the Treaty or consequent to deeds of the Union's institutions", while they must "abstain from any measure which risks prejudicing the achievement of the Union's

The protection of competition must now be considered the main task of the countries [38].

As it is known, these freedoms depend on the principles and rules, both European and national, aimed at creating and maintaining a free and openly competitive market [39], which must be respected, also and above all, by the nations [40], which, therefore, must conform their action, including that concerning the purchase of goods and services supplied by private companies.

taneously breach the rules themselves and the principles of free competition.

relations imposed by private law.

must equip themselves.

administrative courts [36].

objectives" [37].

call for tenders that does not respect that right [35].

As clarified by Directive 2014/24/EU, it must be maintained, on the basis of the case law of the European Court of Justice, that a subject is not a public law body if "it operates under normal market conditions, it aims to make a profit and it sustains the losses that may result from the practice of its business" [31]. If these elements exist, it is licit to suppose that the subject has been created to satisfy needs of general interest that are, in fact, of an industrial and commercial nature.

Also, in this case, it is essential to verify the factual and legal context in which the subject operates. The fact that the economic operator operates in a fully competitive context is a highly relevant element albeit not decisive in itself [32].

In fact, for the economic operator to be encouraged to make purchases aimed at selecting the competitor that offers the best conditions, it is first necessary to ascertain whether it is exposed to an effective competitive pressure, i.e. whether it is an operator "on the market". In addition it is necessary to assess whether the risk of losses deriving from bad management falls entirely on the company or if the losses are perhaps neutralised by lists and items charged to society as a whole. If this second condition is not met, the operator "on the market" cannot be considered "of the market", i.e. motivated by the same incentives as those of all the other operators.

In any case, the analysis of the market according to the techniques precisely of antitrust law is an essential tool to establish whether an economic operator can be qualified as a public law body and as such held to respect the rules imposed by European and national legislation on public contracts.

The contractual activity of a public administration, like a market operator, has many specialised features compared to the discipline normally applicable to agreements between private subjects. Some public contractual events can represent a danger for the need to protect competition and the equal competitive opportunities of the various private subjects interested in being contractual counterparties to a public administration.

There are two topics strictly connected to the administration's role on the market. The first topic regards the fact that acting publicly—inspired by logics of protecting the public interest—conditions the institutes and discipline of common law applicable to contracts between private subjects. The second topic regards the risk of possible alterations in the competitive balance of the market by mechanisms that allow for avoiding procedures of public evidence.

For the coexistence of the various interests that a public administration meets in its service to society as a whole, the fundamental concept of public interest must be redefined. The concept must include the principle of the protection of competition as well as all those guarantees for private subjects introduced by national and community law, which could seem an obstacle and a limitation to the effective pursuit of the specific purpose precisely of an administration that acts as a market operator. In fact, if the public interest is considered in terms of interest for the whole society, it is simpler and more correct to consider as functional to the overall efficiency of the administrative activity also the pro-competition laws underlying the selection of the public administration's economic counterparties and the introduction of rules that prevent the contract-awarding bodies from unilaterally avoiding the contractual restrictions and the responsibilities that bear on every market operator, by exploiting authoritative powers that take on the semblance of intolerable privileges if used to alter the balance of equal relations imposed by private law.

Above all, this last parameter has given rise to interpretative uncertainties and varying case

As clarified by Directive 2014/24/EU, it must be maintained, on the basis of the case law of the European Court of Justice, that a subject is not a public law body if "it operates under normal market conditions, it aims to make a profit and it sustains the losses that may result from the practice of its business" [31]. If these elements exist, it is licit to suppose that the subject has been created to satisfy needs of general interest that are, in fact, of an industrial and com-

Also, in this case, it is essential to verify the factual and legal context in which the subject operates. The fact that the economic operator operates in a fully competitive context is a highly

In fact, for the economic operator to be encouraged to make purchases aimed at selecting the competitor that offers the best conditions, it is first necessary to ascertain whether it is exposed to an effective competitive pressure, i.e. whether it is an operator "on the market". In addition it is necessary to assess whether the risk of losses deriving from bad management falls entirely on the company or if the losses are perhaps neutralised by lists and items charged to society as a whole. If this second condition is not met, the operator "on the market" cannot be considered "of the market", i.e. motivated by the same incentives as those of all the

In any case, the analysis of the market according to the techniques precisely of antitrust law is an essential tool to establish whether an economic operator can be qualified as a public law body and as such held to respect the rules imposed by European and national legislation on

The contractual activity of a public administration, like a market operator, has many specialised features compared to the discipline normally applicable to agreements between private subjects. Some public contractual events can represent a danger for the need to protect competition and the equal competitive opportunities of the various private subjects interested in

There are two topics strictly connected to the administration's role on the market. The first topic regards the fact that acting publicly—inspired by logics of protecting the public interest—conditions the institutes and discipline of common law applicable to contracts between private subjects. The second topic regards the risk of possible alterations in the competitive balance of the market by mechanisms that allow for avoiding procedures of public evidence. For the coexistence of the various interests that a public administration meets in its service to society as a whole, the fundamental concept of public interest must be redefined. The concept must include the principle of the protection of competition as well as all those guarantees for private subjects introduced by national and community law, which could seem an obstacle and a limitation to the effective pursuit of the specific purpose precisely of an administration that acts as a market operator. In fact, if the public interest is considered in terms of interest for the whole society, it is simpler and more correct to consider as functional to the overall

law interpretations, sometimes more extensive and sometimes more restrictive [30].

mercial nature.

106 Public Management and Administration

other operators.

public contracts.

relevant element albeit not decisive in itself [32].

being contractual counterparties to a public administration.

European and national law on public contracts [33] answers, among other things, the need to ensure transparency and equal conditions among the operators of the markets of reference. Both the bidders in tender procedures and the economic operators of the connected markets have the right [34] to pretend that the administration acts in a manner to ensure transparency and equal conditions and, therefore, the said operators are entitled to impugn the deeds of a call for tenders that does not respect that right [35].

The rules of public evidence thus take on a pro-competitive function. Consequently, the implementation provisions of these rules, when they do not achieve the said purposes, simultaneously breach the rules themselves and the principles of free competition.

From another aspect, it must be noted that a call for tenders and the following procedure delimit a specific market within the wider market of reference, and that in one case as in the other, the bordering markets up- and downstream are involved, in which free competition in relation to the purchase of goods and services instrumental to the performance, being goods and services inferred in the tender procedure, must also be safeguarded. Consequently, if the deeds that discipline the tender procedure (calls for tenders, specifications, regulations, etc.) require the bidders to equip themselves, for the contractual activity, with machines or apparatuses that have certain features for the purpose of admission to the bidding or to be awarded a higher score, the principle of the equality of the bidders is prejudiced and, at the same time, competitive parity among the companies that produce the goods with which they must equip themselves.

Consequently, the prejudiced companies will be entitled to request protection also from the administrative courts [36].

The said principle is also based on the freedom of economic activity sanctioned by Art. 41 of the Constitution and on the connected freedoms of establishment and of the circulation of goods and of services, legalised by the TFUE, which must be respected by the member states, which, as it is known, must "adopt every general or specific measure to ensure compliance with the obligations of the Treaty or consequent to deeds of the Union's institutions", while they must "abstain from any measure which risks prejudicing the achievement of the Union's objectives" [37].

The protection of competition must now be considered the main task of the countries [38].

As it is known, these freedoms depend on the principles and rules, both European and national, aimed at creating and maintaining a free and openly competitive market [39], which must be respected, also and above all, by the nations [40], which, therefore, must conform their action, including that concerning the purchase of goods and services supplied by private companies.

It is now confirmed not only that the Public Contract Code also aims at reaching the objectives of protecting and promoting competition [41] but also at guaranteeing that competition represents the primary aim of the law on the awarding of public contracts [42]. Consequently, the contract-awarding body must also play a primary role in regulating and guaranteeing the market: the law on public contracts, over time and especially since the early 1990s, not only bans public administrations from abusing their dominant position, which, for obvious reasons, they occupy on the public contract market in general and in those "created" by the single-award procedures, in particular, but also requires that they exercise their functions and powers in a manner that ensures, first and foremost, competition "for the market" [43].

The Public Contract Code also provides for many pro-competition institutions aimed at guaranteeing competition. These include the framework agreement, the electronic tender, the competitive procedure with negotiation, the competitive dialogue and the partnership for innovation. Public administrations can influence the competitive functioning of the markets when they choose from among the various methods of assigning the service, work or supply and downstream of that choice, when preparing the call for tenders and/or the pre-information notices and the tender specifications, by reporting suspect cases and by collaborating with the contract-awarding bodies and the antitrust authority. The methods that the public administrations can use to efficiently satisfy their needs are the public evidence procedure or direct assignment, also known as in-house provision, within the strict limits established by community and national legal theory and case law.

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The effects on competition of the organisation solution chosen by a public administration to efficiently satisfy its aims differ according to the "choice" adopted. In fact, in the case of the in-house provision of a service, competition is entirely excluded, whereas in the case of the assignment of the service to a company which is partly privately owned, the market rules, and

The calls for tenders and the specifications must therefore be conceived in a manner such as to create the "pre-conditions" so that the comparison between the participating companies is based on criteria of non-discrimination, proportionality and transparency, as well as on the

The New Code No. 50 of 2016, under Art. 51, expressly contemplates that the contract-awarding bodies, to favour access on the part of micro, small and medium enterprises, may divide the contract into lots according to function or performance. The value of the lots must be sufficient to guarantee the effective possibility of participation on the part of the micro, small and medium enterprises. In fact, the contract-awarding bodies are forbidden to break down the work into lots solely to avoid the application of the provisions of the Code or to award the contract by the specious aggregation of contracts. The awarding bodies must also explain why a contract is not divided into lots. In spite of this provision, the specious division of the contract into several lots on the part of an administration may occur. This mechanism may be to avoid the tender procedure obligations. According to the antitrust authority, for an effective comparison between the companies, the number of lots must be less than the number of bidders. Above all, although the pro-competition purpose of temporary groupings of enterprises is well known, the antitrust authority has found that this tool Above all, although the pro-competition purpose of temporary groupings of enterprises is well known, the Antitrust Authority has found that this tool "must always be checked as to whether it is suitable in practice, since it can easily lead to a decrease in the degree of competition, if it allows subjects, which could participate independently, to make a joint bid with their own rivals, thus speciously decreasing the effective extension of the competition". Case law of the administrative courts has also pointed out the risks of a substantial distortion of the institute of the temporary association [45].

Also, in identifying one of the two criteria for the award, i.e. the lowest price and the economically most advantageous offer, it is necessary to guarantee (in addition to respect for the principles of transparency, non-discrimination and equal treatment) an assessment of the offers in a situation

therefore the tender procedure rules, must be respected.

principle of the widest possible participation.

of effective competition.

Article 101 and following of the TFUE in fact generate individual subjective legal situations worthy of protection against all legal subjects, which can be claimed not only for their nature of fundamental rights but also under Art. 33 of Law No. 287/1990, which entrusts to the Code of Administrative Procedure the discipline of legal protection in the case of the breach of the provisions of the said law, in parallel to civil lawsuit for nullity and for compensation pursuant to Art. 33, par. 2, cited above.

This is also confirmed by Art. 21-*bis* of Law No. 287/1990 which, in recognising the antitrust authority's right to sue, offers not only a case of extraordinary and exclusive legitimisation but also a power to act which, until now, was allowed only to private subjects prejudiced by a public authority's actions which breached the rules imposed to safeguard competition and the market [44]. The question of the nature of the interest that the antitrust authority holds can perhaps be solved starting from the consideration that said authority's right to sue, based on the public interest in repressing conduct which harms the principles which protect competition and the market, presumes that, normally, such a right is held by companies which suffer subjective prejudice due to the administration's anticompetition conduct, inasmuch as operating on markets influenced by the effects of such conduct.

The joint expenditure procedures, aimed at limiting corruption, are essential to guarantee the transparent, impartial and economic management of public funds, to the benefit of society as a whole and to the benefit of the quality and efficiency of the public administrations. The public evidence procedures represent the main tool to ensure the correct execution of free competition between the market operators that offer the public administrations labour, services and supplies.

The New Public Contract Code expressly contemplates, under Art. 30, that "The assignment and execution of contracts for works, labour, services, supplies and concessions guarantees the quality of the performance and respects the principles of economy, efficiency, timeliness and correctness. In awarding contracts and concessions, the awarding bodies must also respect the principles of free competition, non-discrimination, transparency, proportionality and of publicity. The awarding bodies cannot speciously limit competition in any manner in order to unduly favour or prejudice certain economic operators nor, in the procedure for awarding concessions, may they speciously influence the estimate of the value of certain works, supplies or services. The criteria for participating in tender procedures must not be such as to exclude the micro small and medium companies".

The Public Contract Code also provides for many pro-competition institutions aimed at guaranteeing competition. These include the framework agreement, the electronic tender, the competitive procedure with negotiation, the competitive dialogue and the partnership for innovation.

It is now confirmed not only that the Public Contract Code also aims at reaching the objectives of protecting and promoting competition [41] but also at guaranteeing that competition represents the primary aim of the law on the awarding of public contracts [42]. Consequently, the contract-awarding body must also play a primary role in regulating and guaranteeing the market: the law on public contracts, over time and especially since the early 1990s, not only bans public administrations from abusing their dominant position, which, for obvious reasons, they occupy on the public contract market in general and in those "created" by the single-award procedures, in particular, but also requires that they exercise their functions and powers in a manner that ensures, first and foremost, competi-

Article 101 and following of the TFUE in fact generate individual subjective legal situations worthy of protection against all legal subjects, which can be claimed not only for their nature of fundamental rights but also under Art. 33 of Law No. 287/1990, which entrusts to the Code of Administrative Procedure the discipline of legal protection in the case of the breach of the provisions of the said law, in parallel to civil lawsuit for nullity and for compensation pursu-

This is also confirmed by Art. 21-*bis* of Law No. 287/1990 which, in recognising the antitrust authority's right to sue, offers not only a case of extraordinary and exclusive legitimisation but also a power to act which, until now, was allowed only to private subjects prejudiced by a public authority's actions which breached the rules imposed to safeguard competition and the market [44]. The question of the nature of the interest that the antitrust authority holds can perhaps be solved starting from the consideration that said authority's right to sue, based on the public interest in repressing conduct which harms the principles which protect competition and the market, presumes that, normally, such a right is held by companies which suffer subjective prejudice due to the administration's anticompetition conduct, inasmuch as operating on markets influenced by the effects of

The joint expenditure procedures, aimed at limiting corruption, are essential to guarantee the transparent, impartial and economic management of public funds, to the benefit of society as a whole and to the benefit of the quality and efficiency of the public administrations. The public evidence procedures represent the main tool to ensure the correct execution of free competition between the market operators that offer the public administrations labour, ser-

The New Public Contract Code expressly contemplates, under Art. 30, that "The assignment and execution of contracts for works, labour, services, supplies and concessions guarantees the quality of the performance and respects the principles of economy, efficiency, timeliness and correctness. In awarding contracts and concessions, the awarding bodies must also respect the principles of free competition, non-discrimination, transparency, proportionality and of publicity. The awarding bodies cannot speciously limit competition in any manner in order to unduly favour or prejudice certain economic operators nor, in the procedure for awarding concessions, may they speciously influence the estimate of the value of certain works, supplies or services. The criteria for participating in tender procedures must not be

such as to exclude the micro small and medium companies".

tion "for the market" [43].

108 Public Management and Administration

ant to Art. 33, par. 2, cited above.

such conduct.

vices and supplies.

Public administrations can influence the competitive functioning of the markets when they choose from among the various methods of assigning the service, work or supply and downstream of that choice, when preparing the call for tenders and/or the pre-information notices and the tender specifications, by reporting suspect cases and by collaborating with the contract-awarding bodies and the antitrust authority. The methods that the public administrations can use to efficiently satisfy their needs are the public evidence procedure or direct assignment, also known as in-house provision, within the strict limits established by community and national legal theory and case law.

The effects on competition of the organisation solution chosen by a public administration to efficiently satisfy its aims differ according to the "choice" adopted. In fact, in the case of the in-house provision of a service, competition is entirely excluded, whereas in the case of the assignment of the service to a company which is partly privately owned, the market rules, and therefore the tender procedure rules, must be respected.

The calls for tenders and the specifications must therefore be conceived in a manner such as to create the "pre-conditions" so that the comparison between the participating companies is based on criteria of non-discrimination, proportionality and transparency, as well as on the principle of the widest possible participation.

The New Code No. 50 of 2016, under Art. 51, expressly contemplates that the contract-awarding bodies, to favour access on the part of micro, small and medium enterprises, may divide the contract into lots according to function or performance. The value of the lots must be sufficient to guarantee the effective possibility of participation on the part of the micro, small and medium enterprises. In fact, the contract-awarding bodies are forbidden to break down the work into lots solely to avoid the application of the provisions of the Code or to award the contract by the specious aggregation of contracts. The awarding bodies must also explain why a contract is not divided into lots. In spite of this provision, the specious division of the contract into several lots on the part of an administration may occur. This mechanism may be to avoid the tender procedure obligations. According to the antitrust authority, for an effective comparison between the companies, the number of lots must be less than the number of bidders.

Above all, although the pro-competition purpose of temporary groupings of enterprises is well known, the antitrust authority has found that this tool Above all, although the pro-competition purpose of temporary groupings of enterprises is well known, the Antitrust Authority has found that this tool "must always be checked as to whether it is suitable in practice, since it can easily lead to a decrease in the degree of competition, if it allows subjects, which could participate independently, to make a joint bid with their own rivals, thus speciously decreasing the effective extension of the competition". Case law of the administrative courts has also pointed out the risks of a substantial distortion of the institute of the temporary association [45].

Also, in identifying one of the two criteria for the award, i.e. the lowest price and the economically most advantageous offer, it is necessary to guarantee (in addition to respect for the principles of transparency, non-discrimination and equal treatment) an assessment of the offers in a situation of effective competition.
