Resumen

RAIMUNDO, Miguel Assis. The duty to consider dividing contracts into lots and the duty to give reasons for not dividing in public procurement law. e-Pública [online]. 2017, vol.4, n.2, pp.21-46. ISSN 2183-184X.

This contribution examines in detail some aspects of the provisions regarding the division of contracts into lots in the revised Portuguese Public Contracts Code.  The author argues that division into lots an essential part of the topic of SME access to procurement, and one of the most significant changes in the Public Contracts Code after its revision by Decree Law nr. 111-B/2017, of 31 August.  The article focuses on giving some account of the reasons behind the rules on the matter, and on understanding the type of reasoning that underlies the contracting authority's duty to consider the division of its contracts into lots. We argue that this duty means that the contracting authority needs to consider the impact of the contract on the market, and its own contract management interests. It is also argued that there is clear ground for judicial review of any decisions taken on this matter.   Summary: 1. Introduction and sequence 2. Main idea and rules providing for the division into lots 3. The debate about the preference for division into lots 3.1. The ‘environment' of EU law and division into lots 3.2. Criticism towards a preference for the division into lots 4. In particular, the duty to consider division and the duty to give reasons for not dividing 4.1. Scope of the duties to consider division and to give reasons 4.2. The reasons for not dividing and their control 4.3. Reasons for not dividing: an attempt at categorization 4.4. Knowledge of the market and division into lots 4.5. The existence of a duty to divide  5. Conclusion

Palabras clave : SME access to public procurement; principle of competition; division into lots; discretion; judicial review.

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