Public procurement

A public procurement contract is a contract between one or more companies (or individuals) and one or more contracting authorities, under which these companies carry out works, supplies or services for these contracting authorities in return for payment. Public procurement contracts must enable public authorities to obtain contracts on the best possible terms.

The choice of company or companies is made on the basis of a procurement procedure. This procedure is mandatory from the moment the contract involves the payment of one euro. As the value of the procurement increases, so do the obligations associated with it.

The contract must be tendered in accordance with the fundamental principles, in particular the principles of transparency, equality and non-discrimination, even in the case of procurement contracts of limited value.

Public procurement contracts must be advertised in the Bulletin des Adjudications (BDA) as soon as they reach an estimated value of €139,000 (excluding VAT) and in the Supplement to the Official Journal of the European Union as soon as the estimated value of the contract reaches the European thresholds (i.e. €214,000 (excluding VAT) for supply and service contracts and €5,350,000 (excluding VAT) for works contracts). The notices can be consulted on e-Notification: e-Notification (publicprocurement.be) . These thresholds apply in 2020 and 2021.

Contracts concluded using the ‘negotiated procedure without prior publication’ in traditional sectors do not have to be published. Such a procurement procedure can be organised, for example, when the expenditure to be approved does not exceed €139,000 (excluding VAT). In this particular case, however, the contracting authority must contact at least three companies and invite them to submit a tender. Similarly, a contract of limited value (i.e. a contract with an estimated value of less than €30,000 (excluding VAT)) does not have to be published.

In Belgium, the publication thresholds are governed by the following amounts:

Negotiations may, where appropriate, take place in certain procurement procedures (competitive procedure with negotiation, simplified negotiated procedure with publication, negotiated procedure without publication).

In a procedure which allows negotiation, the contracting authority may reserve the right not to negotiate and to award the contract on the basis of the initial tenders. If negotiations take place, the contracting authority determines what will be negotiated and will ensure that the tenderers are treated equally. In all cases, the final offer (‘BAFO’ - Best And Final Offer) is non-negotiable.

Negotiation is never possible in an open or restricted procedure. However, the contracting authority may request that certain elements of the tender be ‘proposed, supplemented, clarified or specified’, provided that such requests do not infringe the principles of equal treatment and transparency and that, in the case of an open or restricted procedure, this cannot result in the modification of essential elements of the tender.

The selection criteria must guarantee the contracting authority that the candidates (in the case of restricted or competitive procedures with negotiation) or tenderers (in the case of open procedures) are capable of performing the contract (and therefore have the necessary skills).

These criteria are therefore not linked to the quality of the offer but rather to the ‘CV’ of the candidate or tenderer. Thus, the selection criterion(s) (which will contain at least one criterion that establishes a mandatory minimum threshold amount) may concern (i) the ability to carry out the professional activity; and/or (ii) the economic and financial capacity; and/or (iii) the technical and professional competence.

Apart from the selection criteria announced in the selection guide or contract notice and the specifications, the contracting authority may not impose any additional criteria or requirements on candidates and/or tenderers. The contracting authority shall specify how the candidate and/or tenderer can prove that they meet the selection criterion (for example, by means of annual accounts, CVs, an organisation chart, certificates of satisfactory performance, etc.). The contracting authority must set an appropriate level for each selection criterion. The selection criteria must be proportionate to the subject of the contract.

The attribution criteria must allow an objective comparison of the offers on the basis of a value judgement. In other words, the criteria are used to determine the intrinsic quality of the tenders and to compare them. These criteria are, in particular, quality, price, technical merit, aesthetic and functional characteristics, environmental characteristics, social considerations, operating costs, profitability, after-sales service and technical assistance, delivery date and delivery or performance period, spare parts guarantees and security of supply. If, for example, the contracting authority uses an award criterion based on quality, the tenderer whose offer is of higher quality will win more points.

The contracting authority is free to choose the award criteria, but they must be indicated in the contract notice or in another document relating to the contract. This is the only way for tenderers to know how they can gain points.

For contracts with an estimated value equal to or greater than the European thresholds, the attribution criteria must be weighted. By weighting the criteria, the contracting authority specifies the importance of certain attribution criteria.

Such weighting is not mandatory below the European thresholds. However, if the contracting authority wishes to use a weighting in its attribution report, it must also announce this in the specifications (for all procedures).

The attribution criteria must meet the following requirements:

• Firstly, they must be linked to the subject of the contract. The attribution criteria are deemed to fulfil this condition when they relate to the works, supplies or services to be provided under the contract in all its aspects and at each stage of its life cycle;
• In addition, the attribution criteria must not have the effect of giving the contracting authority unlimited freedom of choice;
• The attribution criteria must also guarantee effective competition;
• Finally, the contracting authority must be able to verify the accuracy of the information and evidence provided by tenderers.

Yes, a tender must correspond in its entirety to what the contracting authority wants. Only then is the tender deemed to be in order. In other words, the term ‘regularity’ of the tender covers the tender's ‘compliance’ with the requirements, conditions and criteria set out in the contract notice or in the specifications.

If a company's tender deviates from these requirements, conditions and criteria, the contracting authority must, in certain cases, reject the tender.

Signing a call for tenders is not usually an act of day-to-day management. A tender must therefore be signed by the company's management representative. In the case of a public limited company, this is the Board of Directors; in the case of a private limited company, it is the managing director(s). The Articles of Association may contain a different provision. For example, they often include a double signature clause that allows two directors to sign an offer. The authorised person may also give a proxy to one or more persons to sign the offer. This proxy must be added to the offer.

In certain cases, signing a contract may be considered as an act of day-to-day management. It is required that this act does not exceed the needs of the company's day-to-day business, that it is of minor importance or that it is of an urgent nature. Whether one of these conditions is met will always have to be assessed on a case-by-case basis.

No. In principle, the contracting authority must draw up a reasoned attribution decision, explaining for each attribution criterion why one tenderer was rated higher than another. This attribution report must be sent automatically to tenderers for contracts with approved expenditure in excess of €139,000, so that they can understand what data the contracting authority has used as a basis for awarding points.

A tenderer will not necessarily receive the full attribution report:

• A tenderer who is not selected must only be informed of the reasons why he has not been selected;
• A tenderer who has submitted an irregular tender must only be informed of the reasons why his tender is irregular.

Only those tenderers who have been selected and have submitted a valid tender should receive the full attribution report.

For contracts with an estimated value equal to or greater than the European publication thresholds, the contracting authority must observe a standstill period. This is a period of 15 days after notification of the reasoned attribution decision, during which the contracting authority may not award any contracts.

Whatever the value of the contract, the appeals are as follows:

• Suspension procedure: this procedure is designed to suspend the attribution decision (so that no contract can be concluded) and must be initiated within 15 days of notification of the motivated attribution decision;
• Cancellation: this procedure aims to cancel the attribution decision and must be initiated within 60 days of notification of the attribution decision, giving reasons;
• Compensation: this procedure must be initiated within five years of notification of the attribution decision, stating the reasons for the decision;
• Procedure for declaring a contract ineffective: this procedure aims to declare the contract ineffective and is only possible if the contracting authority has not complied with the publication rules or the waiting period (the procedure must be introduced within 30 days or 6 months).

The appeal court is either the Council of State or the civil court, depending on what is being requested and whether or not the contracting authority is an administrative authority.