The oblig­a­tion to draw lots

Ser­vices must be award­ed sep­a­rate­ly accord­ing to quan­ti­ties (par­tial lots) and spe­cial­ist areas (spe­cial­ist lots). There is a basic oblig­a­tion to form lots.

Sense and pur­pose

The oblig­a­tion to draw lots serves to pro­mote small and medi­um-sized enter­pris­es. In addi­tion to pro­tect­ing SMEs, the prin­ci­ple of lot for­ma­tion also serves to pro­mote com­pe­ti­tion, equal treat­ment and the preser­va­tion of a broad­ly diver­si­fied mar­ket.

Legal basis

Sec­tion 97 (4) GWB, but also Sec­tion 30 VgV and Sec­tion 22 UVgO, for exam­ple, stip­u­late that ser­vices must be divid­ed into quan­ti­ties (par­tial lots) and award­ed sep­a­rate­ly accord­ing to spe­cial­ist area (spe­cial­ist lots). Infor­ma­tion on the reser­va­tion of a divi­sion into lots, the scope and the pos­si­ble award of lots to dif­fer­ent bid­ders must already be includ­ed in the con­tract award notice.

Excep­tions

In prin­ci­ple, there is an oblig­a­tion to form lots, unless an excep­tion with­in the mean­ing of Sec­tion 97 (4) sen­tence 3 GWB applies. The devi­a­tion from the prin­ci­ple of lot split­ting must be com­pre­hen­sive­ly and care­ful­ly doc­u­ment­ed and jus­ti­fied in order to with­stand a sub­se­quent review. Spe­cif­ic argu­ments relat­ing to the con­crete con­tract must be put for­ward. A weigh­ing of inter­ests and a dis­cus­sion of the pros and cons are required. And this applies to every sep­a­ra­ble par­tial ser­vice.

Eco­nom­ic rea­sons

In indi­vid­ual cas­es, it is per­mis­si­ble to devi­ate from the require­ment of lot for­ma­tion for eco­nom­ic rea­sons. Such eco­nom­ic rea­sons may exist, for exam­ple, if the over­all per­for­mance in accor­dance with the con­tract can­not be ensured or can only be ensured at dis­pro­por­tion­ate expense if the work is divid­ed into lots. The addi­tion­al finan­cial out­lay for lot for­ma­tion should be quan­ti­fied.

Tech­ni­cal rea­sons

An over­all award may also be per­mis­si­ble in indi­vid­ual cas­es for tech­ni­cal rea­sons. Time, logis­ti­cal, con­struc­tion or safe­ty-relat­ed frame­work con­di­tions or sys­tem, pro­duc­tion or coop­er­a­tion-relat­ed struc­tures are con­ceiv­able.

Mar­ket con­cept decides

The spe­cif­ic mar­ket con­di­tions relat­ing to the order in ques­tion must always be exam­ined. If pos­si­ble, lots that can only be served by a few large com­pa­nies should be avoid­ed.

How we can help you

If you, as a con­tract­ing author­i­ty or fund­ing recip­i­ent, wish to car­ry out an over­all award, we will sup­port you with the legal jus­ti­fi­ca­tion.

If you, as a spe­cial­ized com­pa­ny, are pre­vent­ed from sub­mit­ting an offer due to an incor­rect lot allo­ca­tion, please con­tact us imme­di­ate­ly.

For a non-bind­ing inquiry, please con­tact one of our con­tact per­sons direct­ly by phone or e‑mail or use the con­tact form.