Public procurement. Division into lots of the products covered by the public procurement procedure. Margin of discretion in determining the lots

DREPTUL CONTENCIOSULUI ADMINISTRATIV ŞI FISCAL

Abstract

According to item 78 of the Statement of Reasons of Directive 2014/24/EU on public procurement and repealing Directive 2004/18/EC, public procurement should be adjusted to the needs of SMEs; in order to facilitate their participation and to foster competition, the contracting authorities should be especially encouraged to divide the large contracts into lots, depending on the quantitative or qualitative criteria, however, the size and object of those lots should be freely determined by the contracting authority. Therefore, in the conduct of public procurement procedures, the division into lots shall be the rule, for the purpose of facilitating the participation of SMEs and fostering competition, and the contracting authority must have a margin of discretion when determining the object of lots. In this case, it cannot be acknowledged that the division into lots of the products covered by the public procurement procedure was aimed at the artificial restriction of competition, since the contracting authority has objectively substantiated the composition of lots. To this end, the Court acknowledged that the manner of setting up lots was likely to reduce, as much as possible, the risks of errors in usage, by taking into consideration the technical knowledge, expertise, education and the vocational training of the medical staff within the contracting authority, according to the operational Protocols filed to the proceedings and in accordance with Article I.1 of Appendix 1 to the Government Decision no. 54/2009. The composition of lots has not generated any artificial restriction of competition, within the meaning of Article 50 para. (1) of Law no. 98/2016, as long as during a stage prior to the conduct of the online open tender procedure for the award of the framework agreement, the contracting authority received quotation prices from two companies for the estimate of the value of the contract, different from the company in relation to which the appellant relied on its capacity as exclusive dealer of the products (polybutester elastic sutures covered with polytribolate, pacemaker, polyglactin 910).