Applicable threshold for the obligation to consider the division of contracts into lots

Article 58 of the Law of 17 June 2016 on public procurement requires all contracting authorities to consider the division of contracts into lots and, where the contracting authority decides that it would not be appropriate to divide the contract into lots, to indicate, in the procurement documents or in the information referred to in Article 164, §1 of the Law of 17 June 2016 (“Information to keep”), the main reasons for the contracting authority’s decision. Article 58 transposes Article 46 of Directive 2014/24/EU and aims at facilitating SMEs' access to public procurement and, in doing so, increasing competition.

Attention should be paid to the scope of this obligation. Article 58 specifies that this obligation only applies to “supplies, services and works contracts whose estimated amount is equal to or greater than the revisable European threshold for European advertising as applicable to supplies and services contracts awarded by the federal contracting authorities”. The threshold referenced is EUR 135,000; this threshold is referred to in Article 11, paragraph 1, 2° of the Royal Decree of 18 April 2017 on the award of public contracts in the classical sectors, which lays down the European thresholds. The wording of this provision being somewhat ambiguous, the explanatory statement to the Law of 17 June 2016 states that this threshold, initially fixed only for supplies and services of the federal authority, is also applicable both to works contracts and to all contracting authorities.

In other words, it is therefore the European threshold of EUR 135,000 that must be taken into consideration when determining whether this obligation to consider the division of the contract into lots applies and not the "traditional" European threshold applicable to works (2017: EUR 5,225,000), supplies (2017: EUR 209,000) and services (2017: EUR 209,000) contracts.

Finally, the explanatory statement to the Law of 17 June 2016, which reproduces recital 78 of Directive 2014/24/EU, provides some examples of reasons that could be cited by the contracting authority to justify its decision not to divide the contract into lots; most notably: the division could risk restricting competition, or risk rendering the execution of the contract excessively technically difficult or expensive, or it could require coordination of the different contractors for the lots.