The draft act on public procurement was adopted in the Chamber of Representatives on 12 May 2016. It aims to transpose the new European directives on public procurement and to replace the current act of 15 June 2006. The draft act includes a number of new and noteworthy features.
The draft act on public procurement transposes the new European directives on public procurement, namely Directive No 2014/24/EU of 26 February 2014 (classic sectors) and Directive No 2014/25/EU of 26 February 2014 (special sectors). Directive No 2015/23/EU of 26 February 2014 (the Concessions Directive), for its part, is transposed into Belgian law through a separate act.
The directives on public procurement had to be transposed into national law by the Member States by 18 April 2016 at the latest. Although the new act has been adopted, the date of its publication and entry into force are not yet known. The King is empowered to fix the date of entry into force, although no final date of entry into force in case of inaction is provided for. The entry into force will probably also depend on the progress of implementing measures, which include the entire regulation regarding the regularity of tenders. As in the current act, this matter is attributed to the King. This implies that, since 18 April 2016, the provisions of the European directives, which have not been transposed into Belgian law within the prescribed period, may be relied upon directly in court to a certain extent.
The Belgian legislator opted to draft a new act in order to replace the act of 15 June 2006 "on public contracts and certain contracts for works, supplies and services", instead of amending the current legislation. The new act, like the current act, covers both classic and special sectors. However, the act does not deal with the judicial protection currently governed by the act of 17 June 2013. Most probably, another act will be adopted to make the required amendments in this area.
The draft act presents new features compared to the current regulations, among which the following are noteworthy:
Choice of procedures (art. 35): The European directives demonstrate a paradigm shift in this regard. The use of procurement procedures involving negotiations and dialogue with tenderers is now encouraged. These include, for instance, the competitive procedure with negotiation, which is the new name given by Directive No 2014/24/EU to designate the negotiated procedure with prior publication known in the current legislation. They also include the innovation partnership, which is a new procurement procedure introduced in the directive. On the other hand, open or restricted procedures are put forward to a lesser extent because of their rigidity. Although those procedures remain the ordinary procedures that can be used without justification, the requirements for procedures including negotiations have been made lighter. It is also worth noting that the concepts pertaining to Belgian law of "aanbesteding"/"adjudication" and "offerteaanvraag"/"appel d'offre" have been abandoned.
Division of contracts into lots (art. 57): Contracting authorities are encouraged to divide large contracts into lots to facilitate SME participation. Therefore, above a certain threshold, the reasons for the contracting authority's choice not to divide the contract into lots must be given.
Repeal of the distinction between priority and non-priority services (art. 87): From now on, the distinction made in Belgian law between priority and non-priority services, i.e. between services listed in Annexes II.A and II.B, is repealed. The services listed in Annex II.B., which previously enjoyed a lighter obligation of prior publication, are now also subject to all the provisions of the directives. Both the European directives and Belgian law have nonetheless maintained a more flexible regime for social and other specific services.
Repeal of the distinction between public and private special sectors (art. 92): A new approach is taken as regards the rules applicable to contracts awarded in the special sectors. The new legislation no longer distinguishes between two separate titles as does the act of 15 June 2006 – the rules applicable to contracts awarded in the special sectors depending on whether the contracting authorities are ordinary contracting authorities or public enterprises ("public special sector") or whether they benefit from special or exclusive rights ("private special sectors"). Those rules are now merged for simplicity's sake. As a result, and leaving particular deviations aside, a single regime will be applicable to these different types of contracts from now on.
Mandatory use of electronic means (art. 14): For contracts above the thresholds for European publication, all communication and information exchange will have to be carried out entirely by electronic means by 18 October 2018, except for central purchasing (by 18 April 2017). Below these thresholds, this obligation will become applicable as from 1 January 2020, except for negotiated procedures without prior publication and contracts with an estimated value of less than EUR 30,000.
Mixed procurements (arts. 20 to 23): A new section is included in the act to clarify the rules applicable to mixed contracts, namely mixed contracts of works, supply and service contracts awarded within classic sectors, contracts which belong both to classic sectors and to another legal regime, such as special sectors, and contracts involving defence or security aspects.
New specific exclusions (art. 28): New exclusions from the scope of the legislation have been introduced for service contracts. These include some legal services (legal representation in judicial proceedings, legal advice given in preparation for any judicial proceedings and other legal services), some emergency services (civil defence, civil protection, and danger prevention services) and public passenger transport services by rail or metro (that are exclusively subject to the specific procurement rules under Regulation No 1370/2007 on public passenger transport services).
New exceptions relating to "in-house" services and cooperation between public services (arts. 30 and 31): For the first time, several exceptions are expressly set out in the regulations, which ensures legal certainty. The legislator mostly incorporated well-established case law of the Court of Justice of the European Union.