Abstract

Division of a public contract into lots may consist in carrying out two or more proceedings concerning one contract or carrying out a single proceedings with an option to submit partial tenders. Both forms are legally admissible, unless their purpose would be to avoid application of public procurement regulations.

Strictly speaking, it is not the contract that is divided but its object, that is supplies, services or works. Regulations do not specify any division criteria, which justifies a conclusion that this issue has been left to be resolved by the contracting entity, providing only that the division must not lead to a material change of the object of the contract.

In Polish judicature it is assumed that with a view to the principle of fair competition and equal treatment of contractors the contracting entity is obliged to divide the contract into parts. However, this position is doubtful for two reasons. First – because the Polish lawmaker has not made use of the possibility laid down in Art. 46.4 of the classical Directive and did not make division of contracts obligatory. Secondly – because it is contrary to the literal wording of Art. 36aa.1 of the Public Procurement Act according to which “the contracting entity may divide the contract into lots specifying the scope and object of those lots”. The concept adopted in judicature renders this provision defunct as it is based on prohibited per non est interpretation. Therefore, under Polish law, the contracting entity is merely obliged to consider the possibility of dividing the contract into lots rather than actually to carry out such a division.