Belgium: Publication Of Law On Public Procurement

Last Updated: 6 September 2016
Article by Koen T’Syen

Most Read Contributor in Belgium, December 2018

On 14 July 2016, the Belgian Official Journal published the Law of 17 June 2016 concerning public procurement (Wet van 17 juni 2016 inzake overheidsopdrachten/Loi du 17 juin 2016 relative aux marches publics; the "Law concerning Public Procurement"). The Law concerning Public Procurement, which was adopted by the Chamber of Representatives on 12 May 2016 (See, VBB on Business Law, Volume 2016, No. 5, p. 16, available at www.vbb.com), implements into Belgian law Directives 2014/24/EU and 2014/25/EU.

Containing 193 Articles, the Law concerning Public Procurement is significantly more elaborate than its predecessor, the Law of 15 June 2006 (Wet van 15 juni 2006 inzake overheidsopdrachten en bepaalde opdrachten voor werken, leveringen en diensten/Loi du 15 juin 2006 relative aux marchés publics et à certains marchés de travaux, de fournitures et de service), which consists of 80 Articles. Although the Law concerning Public Procurement maintains a number of provisions stemming from the Law of 15 June 2006, it introduces important innovations, some of which are discussed below.

Greater Flexibility in Choice of Tender Procedures

First, while the Law concerning Public Procurement no longer uses the distinction between "adjudication" (aanbesteding/adjudication) and "call for tender" (offerteaanvraag/appel d'offres), it continues to put forward the so-called "open procedure" (consisting of one phase in which any interested party can submit an offer) (openbare procedure/procedure ouverte)  and the so-called "restricted procedure" (in which interested parties first have to submit a request for participation) (niet-openbare procedure/procedure restreinte) as the standard procedures to be used by contracting authorities. However, compared to the situation under the Law of 15 June 2006, the open and restricted procedures are no longer given absolute priority.

The Law concerning Public Procurement thus marks an important shift in the choice of tender procedures by promoting the use of more flexible procedures, other than the open and closed procedures. In line with the intention of the European legislator to provide greater flexibility for contracting authorities in their choice of procurement procedure and to further the use of procedures that contain an element of negotiation, the Law concerning Public Procurement relaxes the conditions for the use of the so-called "competitive procedure with negotiation" (the successor of the procedure previously known as the negotiated procedure with prior publication) (mededingingsprocedure met onderhandeling/procédure concurrentielle avec négociation) and the competitive dialogue (concurrentiegerichte dialoog/dialogue competitive). The Law concerning Public Procurement further introduces a new, flexible tender procedure, the so-called "innovation partnership" (innovatiepartnerschap/partenariat d'innovation).

The innovation partnership is a procedure specifically designed for situations where a need for the development of an innovative product or service or innovative works and the subsequent purchase of the resulting supplies, services or works cannot be met by solutions already available on the market. In such situations, the new procedure allows contracting authorities to establish a long-term innovation partnership for the development and subsequent purchase of a new, innovative product, service or works provided that these can be delivered to agreed performance levels and costs, without the need for a separate procurement procedure for the purchase. According to the parliamentary report for the Law concerning Public Procurement, the introduction of this procedure is intended to give a positive signal to innovative sectors.

Award Criteria

A second innovation is the new approach in applying the award criteria. The Law concerning Public Procurement provides that contracting authorities should award their contracts to the most economically advantageous tender. While under the current regulatory framework the term "most economically advantageous tender" refers to the offer with the best price-quality ratio, the meaning of this term is significantly broadened under the Law concerning Public Procurement. Accordingly, a contracting authority can determine the most economically advantageous tender on the basis of criteria of its choice. These can include price, cost, and/or price-quality ratio.

Thus, even though the Law on Public Procurement no longer uses the concept of "adjudication", contracting authorities still remain free to award a contract based on price as the sole award criterion. The preparatory works of the Law concerning Public Procurement explicitly state that, in the case of highly standardised products such as needles for hospital use, it seems likely that contracting authorities will prefer to use price as the sole tender criterion, as it suffices to refer to the relevant standards in the technical specifications in order to ensure the desired quality. By contrast, contracting authorities using the competitive dialogue or innovation partnership procedures are obliged to award contracts on the basis of the price-quality ratio and are not authorised to award the contract on the basis of price alone.  

The Law concerning Public Procurement generalises the use of tender criteria, which become applicable regardless of the tender procedure used. However, for tenders of limited value and in specific circumstances in which the negotiated procedure without prior publication is applied, contracting authorities are not bound by the rules on award criteria. 

Entry into Force

Most of the provisions of the Law concerning Public Procurement will enter into force only on a date determined by a Royal Decree yet to be adopted. However, three Articles already entered into force on 27 July 2016.  Pursuant to these provisions, contracting authorities will only be allowed, as far as a number of products, services and buildings listed in a Royal Decree are concerned, to purchase these with a demonstrated high energy efficiency performance. However, even the Articles that have already entered into force still have to wait for the publication of a Royal Decree in order to become operational.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
Similar Articles
Relevancy Powered by MondaqAI
 
Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Related Topics
 
Similar Articles
Relevancy Powered by MondaqAI
Related Articles
 
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions