Small public contracts: a paradise for public authorities?

Government bodies are often not fully aware of the flexibility they enjoy when awarding small public contracts.

In order to reduce the red tape (local) public authorities encounter, the Belgian legislator has opted to make many of the complex rules on public procurement non-applicable for smaller contracts. For this purpose, a distinction needs to be made between two categories of small contracts on the basis of their value.

Some of the most notable exemptions for contracts that do not exceed the threshold of EUR 139,000 (excl. VAT) are the following:

  • The publication of a contract notice is not required;
  • Public authorities are not obliged to impose criteria for qualitative selection;
  • The use of the Belgian e-Procurement platforms is not mandatory;
  • Contracting authorities do not have to require bidders to sign their respective tenders;
  • Negotiations can be held with all of the tenderers, regarding all of the tenders, on all aspects, with the exception of the award criteria;
  • When confronted with seemingly abnormally low or high prices, contracting authorities are not obliged to formally examine these prices; and
  • No standstill period applies between the notification of the intended award of a contract and the actual award of that contract.

For contracts whose estimated value does not exceed EUR 30,000 (excl. VAT), certain additional exemptions apply:

  • No procurement specifications document needs to be drafted;
  • Public authorities are not required to use award criteria;
  • The contracting authority is only required to consult multiple companies if it is possible to do so. This consultation can consist of checking the catalogues or websites of certain companies;
  • The contract is awarded from the moment the public authority accepts the invoice of a tenderer;
  • The general rules on the execution of public contracts only apply insofar as the parties agree to their application; and
  • Advance payments are possible.

Public authorities are, however, not entirely free when awarding small contracts. The general principles of public procurement law apply to all public contracts, regardless of the value they represent. Therefore, government bodies need to ensure the equal and transparent treatment of all tenderers when awarding small contracts.

Remarkably, at the beginning of last year, the French-speaking chambers of the Belgian Council of State invoked these general principles to limit the extent to which public authorities can take full advantage of the flexible rules regarding small contracts. In the light of this case law, public bodies ought to keep the general principles in mind even when dealing with small contracts.