Dividing the contract into lots – decision of the contracting authority?

Dividing a contract into lots is undoubtedly a very important instrument supporting the participation of small and medium-sized enterprises in public procurement procedures. The decision in this regard has a significant impact on the further course of the proceedings. Can it be undertaken by the contracting authority without any restrictions?

Division of the contract into parts is the right of the contracting authority, however, the contracting authority’s decision in this respect cannot be described as fully free. First of all, when dividing a contract into lots, the contracting authority must comply with the principle of fair competition and is subject to assessment in terms of the general principles governing the procurement process. Although the legislator did not introduce the obligation to divide the contract into parts, pursuant to art. 91 sec. 2 of the PPL, the contracting authority is obliged to indicate in the procurement documents the reasons for not dividing the procurement into lots.

When will it be possible to withdraw from splitting an order?

The division of the contract will certainly not be able to concern contracts that are inherently indivisible. The Public Procurement Law specifies that a contract is indivisible if, for technical, organizational or economic reasons, it forms an inseparable whole. In other cases, the contracting authority should consider whether the division of the contract is advisable and expedient, bearing in mind that the withdrawal from the division should be justified. Resignation from dividing the contract into lots, pursuant to recital 78 of the preamble to Directive 2014/24/EU, would be justified if the division would threaten:

– restriction of competition,

– excessive technical difficulties,

– excessive costs of order fulfillment

or the need to coordinate the activities of different contractors performing different parts of the contract could seriously jeopardize the proper performance of the contract.

Considering the above, it should be stated that the reasons for not dividing the contract into lots cannot be trivial, nor can they be dictated solely by the contracting authority’s fear that the procedure divided into lots will be associated with minor difficulties, costs or problems with coordinating the contractors’ activities. Therefore, the convenience of the contracting authority is not an argument for not dividing the contract into lots.

Ways to make a division.

The contracting authority who decides to divide the contract into lots may do so in two ways. The first way is to separate each part for separate proceedings. In addition, the contracting authority may decide to conduct one procedure under which it will provide for the possibility of submitting partial tenders.

The decision on the division is irrevocable.

Attention should be paid to the importance of the decision on dividing the contract into lots in the case of dividing the contract through the possibility of submitting partial tenders. Information on the acceptance of partial offers is included in the contract notice, and therefore any changes in this respect should be qualified as a change leading to a significant change in the nature of the contract, affecting the scope of the contract. In such a situation, in the event of a change of decision as to the possibility of submitting partial tenders, the Ordering Party may only cancel the procedure.

In the next part of the cycle, we will discuss the possibility of contractors jointly applying for a public contract, i.e. the institution of a consortium in public procurement.