The law of 8 February 2023 mainly amends the law of June 17 2016 on public procurement (Public Procurement Law 2016). Thus, as an entrepreneur, you will gain more insight into the contracts that contracting authorities place and that currently remain under the radar. Additionally, the law focuses on reporting data to the competent authorities so that they can also carry out the necessary monitoring.
The new law is essentially a response to the fact that data reporting by contracting authorities was either not done or was insufficient. By tightening the rules and using the new e-Procurement platform that will be launched within a few months, the legislator hopes to have more data available in this way. This will make it possible, among other things, to monitor the level of participation of SMEs in public procurement in more detail.
Although the law of 8 February 2023 was published in the Belgian Official Gazette on February 16 2023, the changes will be introduced gradually. Below we provide an overview of the specific changes to the Public Procurement Law of 2016 in function of its entry into force.
From 26 February 2023: Announcement of reasoned decision to terminate the procedure
The law of 8 February 2023 initially introduces an obligation to publish an announcement in case of termination of the awarding procedure and the possible retendering of a new procedure. Previously, this obligation did not exist, which often left entrepreneurs who did not participate guessing about the outcome of the procedure. This new rule will, for example, allow for checking whether the contracting authority correctly applied the rules in case of a possible retendering through a more flexible procedure. It is possible to restart an (non-)open procedure through a negotiation procedure if no, no suitable, only irregular or only unacceptable offers were submitted. Because there was no obligation to publish a termination and (if applicable) resumption decision, broader control was completely absent. This has now been addressed by the new law. Finally, this obligation also allows for keeping broader statistics of the number of awarded and non-awarded contracts.
Starting from 1 September 2023: Expansion of the use of electronic platforms and the announcement of awarded contracts also below EU thresholds.
The law expands the scope of the mandatory use of electronic platforms for public contracts placed by means of a negotiated procedure without prior publication or (in the special sectors) a call for competition, and whose contract value is below the European publication threshold. The law requires that bids must be submitted via the e-Procurement platform. The exception that bids in the context of these placement procedures could also be submitted on paper or by email is thus removed from the law.
From 1 September 2023, there will also be an obligation on contracting authorities to publish a simplified notice of the contract awarded for contracts below the threshold for European publication, providing information on the results of the awarding procedure. Thus, contracts placed through a negotiated procedure without prior publication will also have to be subject to such publication. This way, you immediately know that such a contract was awarded and who was awarded the contract.
From January 1st 2025: Reporting obligation regarding framework agreements and low-value contracts
From January 1st 2025, contracting authorities will be required to report the total value of all contracts awarded based on individual framework agreements concluded during the previous year. The total value of these contracts per beneficiary company will be split according to whether they are for works, supplies, or services. The registration of the beneficiary company is based on the Crossroads Bank for Enterprises (hereafter: CBE) number, and contracting authorities will use the new e-Procurement platform to report this information. It should be noted that this obligation does not exempt contracting authorities from complying with the rules on the maximum value for framework agreements.
In line with the reporting obligation for framework agreements, from 1st January 2025, there will also be a reporting obligation for contracting authorities regarding low-value contracts. This obligation already existed in article 165, § 2 of the Public Procurement Law 2016, but it is now slightly modified. Contracting authorities must now report the total value of all low-value contracts awarded in the previous year. As with the reporting obligation for framework agreements, the total value of these contracts per beneficiary company will be split according to whether they are for works, supplies, or services, and the registration of the beneficiary company will also be based on the CBE number. Note that the reporting obligation does not apply to contracts with a value lower than €3,000.00 (excluding VAT).
The law of 8 February 2023, is a first step in the right direction of increased transparency, which is currently lacking in many areas related to the awarding and conclusion of public contracts. Whether these changes will effectively achieve their goal remains to be seen over time. However, we can only applaud this initiative (and hopefully many more to come).
For more information on this article, please contact Stijn Maeyaert, Ine Verbelen, Ewoud Hacke or Loïc de Wilde.