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THE NEW BELGIAN PUBLIC PROCUREMENT ACTS ENTER INTO FORCE ON JUNE 30 2017: TOWARDS MORE FLEXIBILITY AND MORE OPPORTUNITIES FOR INNOVATIVE SOLUTIONS?

Public procurement plays a key role in the Europe 2020 strategy. Every year, over 250,000 public authorities in the EU spend around 18% of GDP on the purchase of services, works and supplies. Given its economic significance, public procurement represents large volumes of public spending each year. To ensure that the markets remain open and competitive, that suppliers are treated equally and fairly, the new Belgian Procurement Act of June 17th 2016 maintains a number of rules and principles from its predecessor, but also introduces several significant innovations.

European Origins

This new Public Procurement Act transposes Directive 2014/24/EU (classical sectors) and Directive 2014/25/EU (special sectors i.e. in the water, energy, transport and postal services sectors) into Belgian law. It will replace the current Public Procurement act of June 15th 2006.

Entry into force o, June 30th 2017

On July 14th 2016, the Belgian act of June 17th 2016 concerning public procurement (the new Public Procurement Act) has been published in the Belgian Official Journal.

The transposition delay for the 2014 Procurement Directives has already expired on April 18th 2016, but, on May 30, 2016, the Commission had to send a formal notice to Belgium and several other member states  to comply with the EU Directives.

However, over the last few months and up until the previous weeks the new Belgian legal framework for public procurement has been completed with the following laws:

  • The Act of February 16th 2017 on the justification, information and remedies concerning public procurement and certain contracts for public works, supplies and services, published in the Official Gazette of March 19th 2017;
  • The Royal Decree of 18 April 2017 on the award of public procurement in classic sectors, published in the Belgian Official Gazette of May 9th 2017;
  • The Royal Decree of June 18th 2017 on the award of public procurement in special sectors, published in the Belgian Official Gazette of June 23rd 2017
  • The Royal Decree of June 22nd 2017 on the general rules for the execution of public contracts, published in the Belgian Official Gazette of June 27th 2017.

Innovations of the new Public Procurement Act enhancing flexibility

Even if the new Belgian Procurement Act maintains a number of rules and principles from its predecessor, it does introduce several significant innovations. Below, we provide an overview of the most significant elements. 

  • Increased flexibility, making way for the purchase of innovative works, products and services

In line with the Directives objective to offer additional flexibility for contracting authorities with respect to the choice of the procurement procedure, the use of the procurement procedures involving negotiations and dialogue with tenderers is specifically encouraged.

In particular, the new Public Procurement Act renders the conditions for the use of the so-called “competitive procedure with negotiation” (i.e. the procedure currently known as the “negotiated procedure with prior publication”) and the competitive dialogue less restrictive,  by expanding  their authorised use to the following situations :

  • where the needs of the authority cannot be met without adaptation of readily available solutions;
  • where the requirements include design or innovative solutions;
  • where the contract cannot be awarded without prior negotiation, because of specific circumstances relating to the nature, the complexity or the legal and financial make-up, or because of the risks attaching to them.

The new Act also introduces a new, flexible tender procedure introduced in the Directive, the so-called “innovation partnership”, which 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.

For such situations, the new procedure allows contracting authorities to:

  • enter into a long-term innovation partnership for the development and
  • subsequent purchase of a new, innovative product, service or works,
  • whilst ensuring equal treatment and transparency.

The innovation partnership process will include a competitive phase, when the most suitable partner(s) are selected on the basis of their skills and abilities. Than will follow a research and development phase, wherein the selected partner(s) will develop the new solution in collaboration with the contracting authority, and possibly a commercial phase involving the production of goods, the execution of works, or performance of services.

  • Still no open menu of procurement procedures

Although more room will thus be created for flexible procurement procedures involving negotiation, the new Act (in furtherance of the Directive) doesn’t provide for an open menu of award procedures from which contracting authorities may choose freely.

“Open” or “restricted” procedures will remain “standard” procedures, in the sense that contracting authorities may apply them as they see fit in all circumstances, as opposed to the procedures involving negotiation which may only be used in the (expanded) circumstances described in the new Procurement Act.

These “open” or “restricted” procedures are somewhat simplified in the New Procurement Act due to the fact that the current distinction between the procedures of “adjudication" (procedure  wherein the tender is awarded solely on the basis of a price comparison)  and "call for tenders" (procedure awarding the tender on the

 basis of several criteria) procedures has been abandoned.

  • New specific exclusions allowing flexible purchasing outside the framework of public procurement rules and regulations

The new Public Procurement Act has also introduced new exclusions for service contracts from the scope of the public procurement legislation.

These include, among others, certain legal services (the legal representation of a contracting authority by a lawyer in the context of litigation, legal advice given in preparation for any judicial proceedings and certain other legal services) and public contracts for certain emergency services (civil defense services, civil protection and risk prevention).

Authorities may purchase such services outside the strict framework of public procurement rules and regulations.

However, the fact that these markets are excluded does not prevent the application of general administrative law principles and/or the principles of the European Treaties, in particular the principle of non-discrimination.

For further information or if you have any questions, please do not hesitate to contact:

 

Philip PEERENS

Regulatory, Environment & Real Estate  Attorney

[email protected]

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