New Royal decreee concerning the awarding of public tenders in the classic sectors

The Royal Decree (RD) of 18 April 2017 concerning the awarding of public tenders in the classic sectors has been published in the Belgian Official Gazette on 09 May 2017. This RD implements Title 2 of the new Public Procurement Act of 17 June 2016, which is specific to classic sectors. The new rules concerning public procurement in the classic sectors will come into force as of 30 June 2017.

Following the new Public Procurement Act of 17 June 2016 and the Act of 16 February 2017 modifying the Motivation Act of 17 June 2013, this RD is the next step in the implementation process of the new public procurement legislation in Belgium.

The most essential aspects and novelties of this new RD Awarding are:

• Further elaboration of the use of the European Single Procurement Document (ESPD), which is only allowed for public tenders above the European thresholds. For public tenders below the European thresholds, the use of the ESPD is forbidden and the implicit declaration of honour should be used.

• Further elaboration of e-tendering (through electronic platforms), the use of electronic signature and electronic communication.

• Rules concerning conflicts of interest and the "revolving door" mechanism.

• The exclusion ground for fiscal and social security debts will only apply for debts above €3,000.

• The obligation to indicate an adequate minimum level for each qualitative selection criterion. Regarding the economic and financial capacity, the required minimum turnover can be up to double the estimated value of the public tender (unless duly motivated).

• With regards to qualitative selection requirements, there is a presumption of suitability for certificates delivered by a certification body.

• Non-substantial irregularities only lead to the nullity of an offer if such irregularities provide the offer with a discriminatory advantage or lead to distortion of competition.

• The threshold for the negotiated procedure without prior notice increases up to €135,000 (compared to €85,000 for the current negotiated procedure without publication). The new Public Procurement Act of 17 June 2016 already provides for a higher threshold of €30,000 for public tenders by simple invoices (compared to €8,500 under the current legislation).

• A transition period to full e-tendering until 17 October 2018 (for public tenders above European thresholds) and until 31 December 2019 (for public tenders below European thresholds). For central awarding bodies this transition period ends on 30 June 2017.

To fully implement the new public procurement legislation, the Belgian government still needs to adopt:

• a RD modifying the RD Execution of 14 January 2013 and determining the entry into force of the Act of 16 February 2017 modifying the Motivation Act of 17 June 2013
• a RD Awarding special sectors, and
• a RD Awarding and Execution concession contracts.

The second version of the new RD modifying the RD Execution was adopted by the Belgian government on 28 April 2017. However, it has not been published yet due to the references to the future RD Awarding special sectors (still to be adopted) which it contains.

Currently, we are still waiting for the new legislation to enter into force. Upon entry into force, hospitals (and other contracting authorities) are to correctly apply the new legislation for any public tender they launch.

In the meantime, companies are advised to already familiarise themselves with the new legislation, its novelties and most essential changes. This allows verifying upfront - during future public tenders - whether the contracting authority does correctly apply the new legislation.

It is further recommended for companies to start and get used to all aspects of e-tendering and the use the ESPD and e-certis, as public procurement should be fully electronic by October 2018.