Public procurement law amended

The Belgian public procurement regulation is governed by the Public Procurement Act of 1993 [1] (hereinafter “the Act”) and its implementing Decrees [2] which were recently amended by the Royal Decree of 29 September 2009 [3]. The changes concern, amongst others, the use of e-communications in tenders, qualitative selection criteria, access to tenders, calls for tenders, reports regarding awarded contracts, abnormally low offers and negotiation procedures without prior publication.

With the exception of one amendment, the aforementioned changes entered into force on 1 November 2009. It should also be noted that the European application thresholds will be revised, new thresholds will apply as from 1 January 2010.

Modifications to the Act of 1993

The framework of the Belgian public procurement regulation has been laid down in the Act of 1993. This Act suffered no substantial modification. A clause has been added regarding the conditions under which a tender can be considered technically inappropriate (for published procurements above the European threshold). Additional amendments concern the criteria for awarding contracts based on a framework agreement in the special sectors and changes to annexes 1 and 2 of the Act.

Modifications to the Royal Decrees

The Royal Decrees implementing the Act regulate the application within the classic sectors, the water, energy, transport and postal services sectors, and the competition at EU level.

Content wise, the amendments to the three Royal decrees pursue the same objective to make the regulation applicable to the special sectors as well as to the classic sectors and to cross-border competition at EU level.

The new Royal Decree implements multiple changes, most of which are clarifying existing provisions. However, the regulation regarding e-procurement has been modified substantially. The contracting authority can decide for each individual tender if the use of electronic communication is permitted, obligatory or forbidden. The definition of electronic means of communication covers a large variety of mediums but at the moment this seems to be limited to e-mail and cd-rom. However, new electronic platforms like the Flemish e-tendering and the federal e-tenderingplatform are currently under development. The information required for the use of electronic communication must be stated in the tender or in its specifications. If this is not the case, the use of electronic communication is forbidden.

These modifications have been implemented while waiting for the application of the new Public Procurement Acts dated 15 and 16 June 2006. The application of these Acts needs to be determined by the federal government for which a date has yet to be provided.