In brief

The Council of State, in its judgment No. 2905 of 24 October 2023, reaffirmed that the principle of separation of tenders into lots may be derogated only to the extent that an adequate and specific motivation is provided, taking into account the principles of proportionality and reasonableness.

Key takeaways 

The principle of subdivision into lots is an instrument which guarantees access to the market for small and medium-sized enterprises (SMEs) and it aims at increasing the efficiency of public expenditure, in particular by facilitating the participation of SMEs in public procurement.

The aforementioned judgment refers to a supply of medical devices in which the contracting authority, despite having provided for several lots, had included within a single lot highly heterogeneous devices, both from a structural and functional point of view. The Council of State has determined that, in this case, the subdivision into lots made by the contracting authority in fact hindered the participation of SMEs as the individual companies were not able to offer all the different devices included in the lot and that it was insufficient to ensure the favor partecipationis.

Finally, the Council of State reiterated that the mere separation into lots is not sufficient to ensure compliance with the principle in question and does not exclude the possibility of scrutinizing such a separation from the standpoint of legitimacy and compliance with the ratio of the provision. Thus, compliance with the principles of proportionality and reasonableness is also required.