The Belgian Court of Audit recently published a report on the audit it conducted in 2020 and 2021 into the legality and lawfulness of a selection of public contracts awarded by six public services, Defence and three federal agencies. The Court of Audit thus continues its practice of devoting an annual audit report to public procurement since 2017. By informing Parliament and the public and by pointing out shortcomings, the Court of Audit strives for a more qualitative procurement policy.
The recently published report is a summary of eight audits in which the Court of Audit analysed no less than 310 cases, representing a total amount of EUR 967.5 billion excluding VAT. The audit showed that, in general, procurers have a fairly good command of public procurement rules and that compliance is closely monitored. Nevertheless, the Court of Audit found shortcomings on several points. In light of these findings, a number of recommendations have been formulated that may be of interest to all public procurers.
First of all, the public procurement legislation imposes a fundamental obligation to use competition when awarding a public contract. The Court of Audit rightly emphasises that this obligation also applies to low-value contracts (i.e. public contracts with an estimated value of less than EUR 30,000 excluding VAT within the meaning of Article 92 of the Public Procurement Act 2016). In a limited number of the files examined, however, these contracts were awarded without competition. It is therefore recommended that every order be checked for its compliance with the public procurement legislation and, where appropriate, that competition should be allowed.
As regards the specifications, a shortcoming was found in several of the contracts examined. In the context of a public contract, adequate specifications are clearly essential. The recommendation to contracting authorities is to read the tender documents more carefully and always check that the tender documents refer to the most recent legislation. In addition, a correct estimation must always be drawn up and deviations from the applicable legislation must be adequately justified, which did not happen in all the cases investigated either.
The Court also points out that the contracting authority must verify both the overall price of the contract and the price of each post. The Court illustrates this necessity in a practical way by examining a contract for the purchase and lease of PCs: the fact that a tenderer for this contract is a manufacturer of computers and not a distributor is not in itself sufficient to explain prices that are ten or twenty times lower for certain items, according to the Court. For example, for the item relating to the delivery costs of 1,000 PCs, the contracting authority pays nothing but receives €7 per PC. The Court points out that a price reduction in open procedures is only allowed if parcels are grouped together or if the contract documents provide for this possibility, but this may affect the comparability of tenders. And, continues the Court of Audit, “if the overall price reduction is only applied to the delivery costs, it is impossible to know how much the transport actually costs and whether or not these costs are normal”. The Court of Audit concludes that contracting authorities should in general, and certainly for “large contracts”, pay even more attention to knowing the price structure of the bidders.
A good justification is of great importance in every respect. Thus, the Court of Audit formulates the general recommendation to carefully comply with the obligation to motivate. This is even more the case in the situation where a contract legally does not have to be announced. It is essential that the legal and factual reasons justifying this non-announcement are pertinent and included in the reasoned decision.
The grounds for exclusion, on the basis of which a tenderer may be denied access to the contract, proved to be another pitfall for contracting authorities. Before awarding a public contract, the contracting authority must conduct a thorough and exhaustive review of the grounds for exclusion. A lack of such a review may harm the interests of the other tenderers. It is therefore very important that the contracting authority verify all the grounds for exclusion in relation to the undertaking to which it will award the contract. The examination of the exclusion grounds should not be limited to the attestations available through Telemarc.
After taking an award decision, the contracting authority also has a number of information obligations. For instance, it must inform the unsuccessful tenderers and the successful tenderer of the decision taken. Moreover, for contracts with a value that reaches the European thresholds, a contract award notice must be published. According to the Court of Auditors, none of the contracting authorities investigated followed these rules systematically (at least for the non-centralised contracts investigated), so that these information obligations also remain a major issue.
As far as the execution of public contracts is concerned, the Court of Audit notes, among other things, shortcomings with regard to the guarantee and the respect of the payment deadline. The recommendation is to comply more strictly with the provisions on bail and, as far as possible, not to exceed the payment term. In fact, failure to comply with the term of payment is detrimental both to the Treasury and to the image of the contracting authority. In the field of execution, adjustments to supply contracts, imposed by the contractor or requested by certain beneficiaries, were also noted, although the verification of the quality and price of these changes was not sufficiently documented.
Apart from the above, the Court of Audit is not blind to the reality with which many contracting authorities today struggle, such as the complex nature of many public contracts or a shortage of staff. “The Court of Audit is aware that the size, internal organisation, specific contracts and available staff of the departments or institutions play a decisive role in the management of public contracts and the internal control of procurement”, the statement reads.
In conclusion, we may say that, overall, the regulations are being applied fairly well. Nevertheless, various shortcomings are still observed. Some of them are also serious and fundamental, such as the lack of publication of contracts, in which case the public procurement regulations can be sidestepped. In any case, the Court of Audit’s recommendations are a handy checklist when going through the awarding process.
The full report of the Court of Audit can be found via this link: