On 14 February 2018, the Belgian Official Journal (Belgisch Staatsblad/Moniteur belge) published a Charter on the Access of Small and Medium-sized Enterprises ("SMEs") to Public Procurement Procedures (Charter 'Toegang van kmo's tot overheidsopdrachten'/Charte 'Accès des PME aux marchés publics'; the "Charter").
The Charter was adopted in January 2018 by the Federal Public Service Economy, SMEs, Self-employed and Energy (Federale Overheidsdienst Economie, KMO, Middenstand en Energie/Service public fédéral Economie, PME, Classes moyennes et Energie). The Charter is addressed to federal public authorities, which should apply its principles when awarding public contracts.
The key goal of the Charter is to increase the number of SMEs that participate in tenders organised by federal contracting authorities. Noting that SMEs face many practical hurdles when it comes to participating in public tender procedures (including significant participation costs and a lack of knowledge of the regulatory framework and requirements), the Charter puts forward 13 principles to facilitate access of SMEs to public tender procedures.
The Charter calls on contracting authorities to:
- consider subdividing contracts into lots and limit the number of lots that can be awarded to the same tenderer;
- ensure that contract notices are published in a timely fashion so that SMEs have sufficient time to prepare for possible participation;
- ensure effective competition in the case of negotiated procedures without prior publication;
- establish appropriate contract award criteria which guarantee effective competition;
- encourage tenderers to submit variants so as to enable them to propose alternative solutions;
- provide for an adequate and effective protection of intellectual property rights of innovative SMEs;
- optimise the use of electronic communications to increase competition and transparency and reduce the administrative costs of both contracting authorities and tenderers;
- provide candidates who are not selected and tenderers whose offer is not chosen with adequate and timely feedback;
- impose proportionate and reasonable minimum requirements in the technical specifications;
- be reasonable and observe the principle of proportionality when defining the selection criteria, expected financial guarantees and payment terms;
- resort to negotiated procedures or procedures with a dialogue to enable SMEs to propose proficient and innovative solutions;
- whenever possible, resort to simple procedures, such as the accepted invoice (aanvaarde factuur/facture acceptée), to limit costs and the administrative burden on tenderers; and
- establish both quantified objectives as regards access of SMEs to tender procedures and an annual monitoring system.
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