Decision of the Higher Court of Justice of Cantabria, March 2nd, 2023, (Roj: STSJ CANT 238/2023 – ECLI:ES:TSJCANT:2023:238), Spain
Article(s) in Directive 2014/24/EU: Art. 46
Topic: Division of contracts into lots
Member State: Spain
Court/rev. board: Higher Court of Justice of Cantabria
1. IMPLEMENTATION / RELEVANT NATIONAL LEGISLATION
Transposition of the content of Art. 46 of Directive 2014/24/EU is in Article 99 of the Law 9/2017, of November 8, on Public Sector Contracts.
2. FACTS
Article 99 of the Spanish Law, on whether the provision of a contract can be divided into lots, states that the division should be done, with the contracting authority duly justifying in the file its option not to divide it, when applicable. This rule, in line with recitals 77 and 78 of the Directive, was proposed since it would help encourage SMEs to participate in public sector procurement procedures. So, in Spain, the possibility referred to in Article 46.4 of the Directive has been assumed and the general rule is that the division of contracts into lots is mandatory.
The appeal decided by this judgement attained to a contract for a “helicopter transport service for rescue and rescue intervention, medical transport, civil protection works and medical assistance in emergencies attended by the service’s rescue and rescue team of civil protection and emergencies of the Government of Cantabria”. The contractual documents did not shift the object of the contract into lots. An economic operator appeals, holding that the non-division breaches the Spanish Law on Public Sector Contracts. The contracting authority did not deny that the object of the contract could be divided into lots – which was obvious because there were several functions, provisions and services that made up the contract object and because there were two aircraft contracted. However, the contracting authority understood that there was one reason that, in accordance with Spanish Law, could justify not dividing the object of a contract into lots, specifically, the reason, of art. 99.3.b) of the LCSP, according to which “…the independent realization of the various services included in the object of the contract would hinder its correct execution from a technical point of view; or that the risk for the correct execution of the contract comes from the nature of its object, by implying the need to coordinate the execution of the different services, an issue that could be made impossible by its division into lots and execution by a plurality of contractors different. Both extremes must be, where appropriate, duly justified in the file”. The Court explains that the contracting authority is right in stating that the division into lots is not an obligation, since legal exceptions are allowed. But the aforementioned does not imply that the contracting authorities have absolute and unconditional freedom to decide whether or not to divide the object of a contract into lots. Not dividing must be adequately justified on a case-by-case basis in the procurement file.
The Spanish Law requires that the valid reason for not dividing the object of a contract into lots is duly justified. This justification has two prongs: a) the explanation of the legal reason/validity; and b) the accreditation of its concurrence in each case. The Court reminds that justifying is not asserting the concurrence of the legal assumption: each assertion, even if it has a technical nature, must be substantiated, explained; and there can never be a lack of consideration of the expressive circumstances of the case, on the one hand, the need to safeguard the maximum concurrence of bidders through the division of the object of the contract, and, on the other, the need to unify it to ensure the effective execution of the services or provisions to be contracted.
3. JUDGMENT
The Court reasons that the coordination of the provisions object of the contract is a function that must face the Administration itself: the protocols and guidelines that it establishes are the ones that the contractor will have to follow, regardless of whether it is single or not, in function of the different actions; and it is the Administration that, moreover, will direct each specific mission giving the appropriate specific instructions. The dynamics of action of the contractor and his organization (whether one or two or more) must accommodate to said protocols, guidelines, and instructions. In this case, the Court does not appreciate how the coordination of the service could be made impossible by the fact that the contract is divided, at least, into two lots (one for each helicopter that has to perform different functions, although, in some cases, simultaneously). Since the Administration itself is entrusted with the coordination, the Court understands that the non-division of the object is not proven to be essential to guarantee the correct execution of the contract. It considers that it is not justified to sacrifice the scope of the competition that the division of the contracts into lots would suppose. Considering the above, the Court partially upholds the contentious-administrative appeal and nullifies the decision incorporated into the contractual specifications not to divide the object of the contract into lots.
