New provisions regarding exclusion grounds in public procurement: corrective measure

The new public procurement legislation, which is expected to enter into force on 30 June 2017, contains new provisions for candidates or tenderers facing exclusion. This is a transposition into Belgian law of Article 57 of Directive 2014/24/EU.

Even if there are relevant grounds for exclusion, a candidate or tenderer will be allowed to provide evidence to the effect that measures taken by it are sufficient to demonstrate its reliability. If the contracting authority considers the evidence to be sufficient, the candidate or tenderer will not be excluded from participating in the procurement award procedure. This new measure does not, however, apply to the grounds of exclusion relating to social and tax debts.

For evidence purposes, the Act requires the candidate or tenderer to do the following:

  • demonstrate on its own initiative that it has paid, or has undertaken to pay, compensation in respect of any damage caused by its criminal offence or misconduct;
  • clarify the facts and circumstances in a comprehensive manner by actively collaborating with the investigating authorities; and
  • take concrete technical, organizational and personnel measures that are appropriate to prevent further criminal offences or misconduct.

The contracting authority must evaluate these measures, taking into account the gravity and particular circumstances of the criminal offence or misconduct. This decision of the contracting authority should be duly substantiated (from both a formal and substantial point of view).

Finally, these provisions will not apply to a candidate or tenderer that has been excluded by final judgment from participating in procurement or concession award procedures during the period of exclusion resulting from that judgment in the Member States where the judgment is effective.

Gilles Bataille, Associategilles.bataille@cms-db.com

Virginie Dor, Partnervirginie.dor@cms-db.com