Crisi d’impresa e contratti pubblici. Riflessioni critiche sull’istituto dell’avvalimento obbligatorio e ‘rinforzato’

The paper deals with the study of the relationship between bankruptcy law and public procurement. Given the complexity of the subject, the analysis proceeds through a brief diachronic analyis of the stratified regulatory framework, with the aim of highlighting the reasons underlying the evolution of the relationship between these two branches of the legal system. A specific attention is devoted to the so-called ‘mandatory pooling’, which in the current Public Procurement Code (Legislative Decree No. 50/2016) was supposed to represent the balancing point with respect to the plurality of public and private interests involved in the cases of participation of economic operators in a state of insolvency or bankruptcy in public tender procedures. As the analysis shows, several critical issues characterise the aforementioned legal institute suggesting, therefore, its elimination in light of the ongoing reform process of Italian public procurement law.