Anti-Splitting Rules

Anti-splitting rules are one of the most fundamental principles of EU procurement law. The rules exist because, without them, contracting authorities could circumvent the entire threshold system simply by dividing a large contract into smaller pieces, each falling below the threshold and therefore escaping full competitive advertising. EU procurement law expressly prohibits this practice.

What are anti-splitting rules?

Article 5(3) of Directive 2014/24/EU states that the choice of a method for calculating the estimated contract value shall not be made with the intention of excluding it from the scope of the directive. This prohibition applies whether the splitting is intentional or where the effect of the method chosen is to keep contracts below the threshold without legitimate justification.

Splitting can take several forms:

Temporal splitting. Running several procurement procedures back-to-back across consecutive financial years for what is, in substance, a continuing requirement that should be treated as a single contract of longer duration.

Subject-matter splitting. Dividing a single functional requirement into parts based on geography, department, or product subcategory where there is no genuine operational reason for separate procurement. See also aggregation rules for the positive duty to combine such values.

Lot manipulation. Using the lot provisions of the directive to create lots that are below the threshold individually, while treating the overall framework as if the threshold rules do not apply. Note that legitimate lotting of a large contract above the threshold, to give SMEs a better chance, is actively encouraged by the directives and is not splitting.

The key distinction is between genuine organisational or operational reasons for dividing requirements (which are permitted and can be good practice) and purely financial reasons for division aimed at avoiding full procedure (which are prohibited).

Why it matters for bidders

Anti-splitting rules give suppliers a basis for challenging procurement decisions they believe have been structured to exclude open competition. If a contracting authority awards a sequence of contracts to the same supplier, each just below the threshold, without ever running a full competitive procedure, competitors can raise a formal complaint with the national supervisory authority or procurement review body.

Understanding anti-splitting rules also helps bidders engage constructively with buyers during pre-market phases. If you can help a buyer understand how to correctly aggregate and value a requirement, you may help bring an opportunity into the above-threshold space where you can compete fairly.

Example

An Austrian federal ministry awards contracts for management consulting services six times in a financial year, each worth approximately 130,000 euros, to the same three firms under a series of direct awards. The ministry argues each contract is a separate assignment. However, all six contracts relate to the same overarching reform programme, and the total expenditure of 780,000 euros far exceeds the central government services threshold of 143,000 euros. A competitor who missed out on work could credibly argue that the contracts should have been aggregated and advertised on TED, and that the award pattern constitutes unlawful splitting.

Frequently Asked Questions

Is it ever legitimate to run multiple small contracts for the same type of service?

Yes. Genuine operational reasons can justify separate small contracts: purchasing from different suppliers because each has specialist expertise relevant to a distinct task, awarding contracts to meet urgent and unforeseeable needs of limited scope, or purchasing through a framework that was itself correctly established above the threshold. The test is always whether the structure is driven by genuine operational need or by the desire to avoid procedure.

What are the consequences of unlawful splitting?

Consequences depend on the member state, but can include: the contract being declared ineffective (void) by a national court or review body; fines imposed on the contracting authority; reputational damage for the buying organisation; and, in EU-funded projects, financial corrections that require the authority to repay grant money. National oversight bodies increasingly scrutinise repetitive small-value awards.

Does anti-splitting apply to emergency purchases?

Emergency and urgent purchases are subject to their own procedural rules, which can permit faster or less competitive procedures. However, even emergency purchases must be genuinely urgent, must not have been created by the authority's own delay or planning failures, and must be limited in scope to what the emergency requires. Repeated "emergency" purchases of the same type are themselves a red flag for splitting.