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16 FEBRUARY 2017. - Act of February 16, 2017 amending the Act of June 17, 2013 on motivation, information and remedies in public procurement and certain contracts of work, supplies and services

PHILIPPE, King of the Belgians,
To all, present and to come, Hi.
The Chamber has adopted and we sanction the following:
Article 1^er. This Act regulates a matter referred to in Article 74 of the Constitution.
Art. 2. The title of the Act of 17 June 2013 on motivation, information and remedies for public procurement and certain contracts of work, supplies and services, as amended by the Act of 4 December 2013, is replaced by the following:
"An Act respecting motivation, information and remedies for public procurement, certain labour markets, supplies and services and concessions."
Art. 3. Article 1^erParagraph 2 of the Act is replaced by the following:
"She transposes:
1° Council Directive 89/665/EEC of 21 December 1989, coordinating the legislative, regulatory and administrative provisions relating to the application of appeal procedures for the procurement of public procurement of supplies and works, as amended by Directive 2007/66/EC;
2° Council Directive 92/13/EEC of 25 February 1992, coordinating the legislative, regulatory and administrative provisions relating to the application of community rules on procurement procedures for entities operating in the water, energy, transport and telecommunications sectors, as amended by Directive 2007/66/EC;
3° Articles 35 and 55 to 64 of Directive 2009/81/EC of the European Parliament and of the Council of 13 July 2009 on the coordination of procedures for the procurement of certain contracts of work, supplies and services by procuring authorities or procuring entities in the areas of defence and security, and amending Directives 2004/17/EC and 2004/18/EC;
4° Article 22 partially and Article 55 of Directive 2014/24/EU of the European Parliament and of the Council of 26 February 2014 on the procurement of public procurement and repealing Directive 2004/18/EC;
5° Article 40 partially and Article 75 of Directive 2014/25/EU of the European Parliament and of the Council of 26 February 2014 on procurement by entities operating in the water, energy, transport and postal services sectors and repealing Directive 2004/17/EC;
6° Article 29 partially and Articles 40, 46 and 47 of Directive 2014/23/EU of the European Parliament and of the Council of 26 February 2014 on the award of concession contracts. "
Art. 4. In the same Act, and provided that its provisions are not replaced by other provisions of this Act, the following amendments are made:
1° with the exception of Article 2, 7°, the words "of June 15, 2006" are replaced each time by the words "relative to public markets";
2° with the exception of Article 2, 8°, the words "of August 13, 2011" are each time replaced by the words "defense and security";
3° the words "a new market" are replaced each time by the words "a new procedure of procurement";
4° the word "community" is replaced each time by the words "European Union";
5° in the Dutch text of titles I and II of the same law, the word "competitiedialoog" is each time replaced by the words "concurrentiegerichte dialoog".
Art. 5. In section 2 of the Act, the following amendments are made:
(a) 1° is replaced by the following:
"1° market: the public market or the market for work, supplies or services, the framework agreement and the competition within the meaning of the Public Procurement Act or the Defence and Security Act, as the case may be; »;
(b) between 1° and 2°, a 1°/1 is inserted as follows:
"1°/1 concession: the concession of services or the concession of work referred to in Article 2, 7°, of the law on concessions; »;
(c) 2° is replaced by the following:
"2° procuring authority: the buyer referred to in section 2, 5°, the Public Procurement Act and section 2, 5°, the Concessions Act and the procuring power, the public enterprise or the private person enjoying special or exclusive rights within the meaning of the Defence and Security Act, as the case may be; »;
(d) the 3° shall be replaced as follows:
"3° concerned candidate: according to the definitions of this Act and the Public Procurement Act, the Concessions Act or the Defence and Security Act, as the case may be, the candidate to whom the procuring authority, on the occasion of a contract or concession, did not provide the reasons for his non-selection before the award decision is communicated to the bidders concerned; »;
(e) at 4°, first draw, the words "non-selection or refusal of its indicative offer before" are replaced by the words "non-admission before";
(f) at 5°, the word "notified" is replaced by the word "communicated";
(g) between 5° and 6°, a 5°/1 is inserted, as follows:
"5/1° participant retained in the framework agreement: the economic operator party to the framework agreement within the meaning of the Public Procurement Act; »;
(h) the 7° is replaced as follows:
"7° the law on public procurement: the law of 17 June 2016 on public procurement; »;
(i) between 7° and 8°, a 7°/1 is inserted, as follows:
"7°/1 the concession law: the law of 17 June 2016 on concession contracts; »;
(j) at 8°, the words "the law of 13 August 2011: " are replaced by the words "the law of defence and security: ";
(k) at 10°, the comma is replaced by the word "and" and the words "and IV" are deleted.
Art. 6. In the title of Title II of the same law, the word "ressorterende" in the Dutch text is replaced by the word "ressorterend" and the words "and for concessions under the law relating to concessions" are added.
Art. 7. In the title of Chapter 1^er of Title II of the same law, the words "and concessions" are inserted between the word "marks" and the word "attractive".
Art. 8. In section 3 of the Act, the following amendments are made:
1° to paragraph 1^er, the words "by the King" are deleted;
2° the article is supplemented by paragraphs 2, 3 and 4 as follows:
"This chapter also applies to concessions that fall under the Concessions Act and whose value reaches the amount set for European advertising.
Article 4, paragraph 1^er, 2° and 3°, is not applicable to public procurement for social services and other specific services referred to in Schedule III of the Public Procurement Act.
Where the initial estimate of the market or concession is less than the amount set for European advertising, but the non-tax amount on the value added of the offer to be approved is more than 20% above that amount fixed, this chapter shall apply, except for section 4, paragraph 1^er1° to 6°, paragraphs 2 and 3, of Article 4/1, paragraph 1^er, 1° and 2°, and 2°, and Articles 7 and 7/1, and on the understanding that the application of Chapter 2 precedes that of this chapter. This paragraph does not apply in the case provided for in section 12, 1°. "
Art. 9. Section 4 of the Act is replaced by the following:
“Art. 4. As part of the procurement of a contract, the procuring authority shall prepare a reasoned decision:
1° when it decides to use a negotiated procedure without prior publication or a negotiated procedure without prior competition;
2° when it decides to resort to a competitive procedure with negotiation;
3° when it decides to use competitive dialogue in the conventional sectors;
4° when deciding on the qualification or withdrawal of the qualification within the framework of a qualification system;
5° when deciding on the selection of candidates when the procedure includes a first phase involving the introduction of applications for participation;
6° when it decides, within the framework of a dynamic acquisition system, not to admit a participant;
7° when it decides, within the framework of a competitive dialogue, to declare the dialogue concluded;
8° when it assigns a contract, regardless of the procedure;
9° when it renounces the procurement and, if necessary, decides to initiate a new procurement procedure.
With respect to decisions referred to in paragraph 1^er, 1° to 3°, the reasons for the decision must exist at the time the decision is made, but the reasoned formal decision may, however, be written a posteriori, at the time of the establishment of the next decision referred to in paragraph 1^er, 4°, 5°, 7°, 8° or 9°, as applicable.
In the following cases, if the award decision referred to in paragraph 1^er, 8°, cannot be written immediately, it is written a posteriori, and no later than fifteen days after the decision:
1° in the event of an imperious emergency in the case and in the conditions provided for in Article 42, § 1^er, 1°, b), or 124, § 1^er5° of the Public Procurement Act;
2° if it is classified and purchased at a stock exchange of raw materials in the case and under the conditions provided by section 42, § 1^er, 4°, c), or 124, § 1^er9° of the Public Procurement Act;
3° where supplies are purchased under particularly advantageous conditions, in the case and under the conditions provided for in section 42, § 1^er, 3°, or 124, § 1^er10° and 11° of the law on public procurement. "
Art. 10. In the same Act, an article 4/1 is inserted as follows:
"Art. 4/1. In the context of a concession, the procuring authority shall prepare a reasoned decision:
1° when it decides to apply the procurement procedure referred to in Article 43, § 2, of the Concessions Act;
2° when deciding on the selection of candidates when the procedure includes a first phase involving the introduction of applications for participation;
3° when it assigns a concession, regardless of the procedure;
4° when it renounces a concession and, if necessary, decides to initiate a new procurement procedure.
With respect to decisions referred to in paragraph 1^er, 1°, the reasons for the decision must exist at the time the decision is made, but the reasoned formal decision may, however, be written a posteriori, at the time of the next decision referred to in paragraph 1^er, 2°, 3° or 4°, as applicable. "
Art. 11. In section 5 of the Act, the following amendments are made:
(a) in the first sentence, the words "transmission" are inserted between the word "procedure" and the words "and the type of decision";
(b) at 1°, the words "the date of the decision" are inserted between the words "adjudicative authority" and the word "object";
(c) at 2°, the word "negotiated" is replaced by the words "competitive with negotiation, negotiated procedure without prior publication, negotiated procedure without prior competition,"
(d) at 6°, the words "related decisions" are replaced by the words "justifying their selection or non-selection";
(e) the 7° is replaced by the following:
"7° - in the event of a competitive dialogue, the names of the participants whose solutions or solutions have or have not been retained at the end of the dialogue and the grounds for law and fact of the decisions relating thereto;
- in the event of a dynamic acquisition system, the names of the participants not admitted and admitted and the grounds for law and fact of the relevant decisions; "
(f) at 10°, the words "of attribution" are replaced by the words "of passing".
Art. 12. In the same Act, an article 5/1 is inserted as follows:
"Art. 5/1. The reasoned decision referred to in Article 4/1 shall, according to the procurement procedure and the type of decision:
1° the name and address of the procuring authority, the date of the decision, the subject matter of the concession, and, where applicable, the price or the amount of royalties to be approved;
2° in the case of recourse to the procurement procedure referred to in article 43, § 2, of the law relating to concessions, the grounds for law and fact justifying or allowing the use of this procedure;
3° names of candidates or bidders;
4° the names of candidates or bidders not selected and selected and the grounds of law and fact justifying their selection or non-selection;
5° the names of the bidders whose offer was deemed non-compliant and the grounds for law and de facto eviction. These reasons include compliance with the minimum requirements of a technical, physical, functional or legal nature established, if any, by the procuring authority in the concession documents;
6° the names of the successful bidder or of the selected participant(s) and of the participants and bidders whose offer has not been chosen and the reasons for law and fact of the relevant decisions, including the characteristics and relative benefits of the offer chosen;
7° the grounds for law and fact for which the procuring authority may have waived the concession and, where applicable, the indication of the new procedure of passing followed. "
Art. 13. Section 6 of the Act is replaced by the following:
“Art. 6. The decision referred to in Article 5, supplemented if any by the information referred to in Article 164 of the Public Procurement Act, shall be the individual report and shall be transmitted to the European Commission, at its request, via the point of contact referred to in Article 163, § 2, of that Act. "
Art. 14. In section 7 of the Act, the following amendments are made:
1° in paragraph 1^er, the words "market or concession" are inserted between the words "when the procedure" and the words "understand a first phase";
2° in paragraph 2, paragraph 2, the words: "Inform this intention in writing and reasons" are replaced by the words "common to this intention and the reasons";
Paragraph 4 is replaced by the following:
Ҥ4. In the event of a dynamic acquisition system, as soon as the decision has been substantiated, the procuring authority shall communicate to any unlicensed participant the reasons for its non-admission, extracted from the reasoned decision. "
Art. 15. In the same Act, an article 7/1 is inserted as follows:
"Art. 7/1. In the event of a contract with a competitive negotiation procedure, a negotiated procedure without prior publication, a negotiated procedure with or without prior competition, a competitive dialogue or an innovation partnership, the procuring authority shall, at the request of any bidder who has made a regular offer or any participant who has proposed a solution, communicate the information relating, as the case may be, to the conduct and advance of the negotiations or dialogue with the participating bidders or "
Art. 16. In section 8 of the Act, the following amendments are made:
1° in the Dutch text, with the exception of the first sentence of paragraph 1^er, the word "kennisgeving" is each time replaced by the word "mededeling";
2° in paragraph 1^erParagraph 1^er, in the Dutch text, the words "doet de aanbestedende instantie kennisgeving van" are replaced by the words "deelt de aanbestedende instantie het volgende mee";
3° in paragraph 1^erParagraph 1^er, 2°, the words "or non-compliant" are inserted between the words "was judged irregular" and the words "the motives of its eviction";
4° in paragraph 1^er, paragraph 2, 2°, the words "by any other electronic means" are replaced by the words "if any, by the electronic platforms referred to in Article 14, § 7, of the Law on Public Procurement or the electronic means of communication referred to in Article 32 of the Law on Concessions,"
5° in paragraph 1^erthe third paragraph is repealed;
6° in paragraph 2, paragraph 2, the words "or this concession" are inserted between the word "marché" and the words ", the suspension" and, in the Dutch text, the word "ingesteld" is replaced each time by the word "ingediend".
Art. 17. In article 9 of the same law, the words "or a concession" are inserted between the words "renouncing a contract" and the words "and, if any,".
Art. 18. In the same Act, an article 9/1 is inserted, which reads as follows:
"Art. 9/1. § 1^er. The procuring authority shall immediately make the communications referred to in Articles 7, 8 and 9, by fax, e-mail or electronic platforms referred to in Article 14, § 7, of the Public Procurement Act or the electronic means of communication referred to in Article 32 of the Concessions Act and, on the same day, by registered mail.
§ 2. Communications referred to in paragraph 1^er indicate the existence of remedies, their deadlines and the competent authorities at least with an explicit reference to articles 14, 15, 23 and 24.
In the absence of these references, the time limit for the introduction of the annulment appeal referred to in Article 23, § 2, shall take place four months after the communication of the reasoned decision. "
Art. 19. Section 10 of the Act is replaced by the following:
“Art. 10. Without prejudice to section 13 of the Public Contracts Act and section 31 of the Concessions Act, certain information may not be disclosed where their disclosure would impede the application of a law, would be contrary to the public interest, would prejudice the legitimate commercial interests of public or private economic operators or could adversely affect fair competition between them. "
Art. 20. In section 11 of the Act, the following amendments are made:
1st paragraph 1^er is replaced by the following:
"The conclusion of the contract or concession following the award decision cannot in any case take place before the expiry of a period of fifteen days from the communication of the decision motivated to the candidates, participants and bidders concerned in accordance with Article 9/1. In the absence of simultaneousity between the consignments, the deadline shall take place for the candidate, participant or bidder concerned, on the date of the last consignment. »;
2° in paragraph 2, the words "or concession" are inserted between the word "marked" and the words "before";
3° in paragraph 3, the words "any other electronic means" are replaced by the words "if applicable, using the electronic platforms referred to in section 14, § 7, of the Public Procurement Act or the electronic means of communication referred to in section 32 of the Concessions Act,"
4° in paragraphs 4 and 5, the words "or concession" are inserted each time after the word "marked".
Art. 21. In section 12 of the Act, the following amendments are made:
(a) in the first sentence, the words "or concession" are inserted between the word "marked" and the words "may have";
(b) 1° is replaced by the following:
"1° where the publication at the European level of a market notice or notice of concession is not mandatory;"
c) at 2°, the words "or concession" are inserted between the word "marked" and the words "is attributed".
Art. 22. In section 13 of the Act, the following amendments are made:
1° the words "or concession" are inserted each time after the word "marked";
2° in paragraph 2, the words "or the concessionaire" are inserted after the words "the buyer".
Art. 23. In section 14 of the Act, the following amendments are made:
(a) in the first sentence, the words "or a concession" are inserted between the word "marked" and the word "determined";
(b) 1° is replaced by the following:
"1° the European Union's right to public procurement or concessions applicable to the market or to the concession concerned, as well as the law on public procurement or concessions; »;
(c) at 2°, the words "or concession" are inserted between the word "marked" and the word "concerned";
(d) the 3rd is completed by the words "or concession".
Art. 24. In section 15 of the Act, the following amendments are made:
1° to paragraph 1^er, the words "a risk of serious harm difficultly repairable" are replaced by the words "emergency";
2° Paragraph 2 is replaced by the following:
"According to the competent court of appeal in accordance with Article 24, the request for a suspension and the request for interim measures shall be brought before the Council of State, exclusively in accordance with the procedure of extreme urgency and before the judicial judge, exclusively in accordance with the procedure of reference. "
Art. 25. In section 16 of the Act, the following amendments are made:
1° to paragraph 1^er, the words "or concession" are inserted between the word "marked" and the words ", provided";
2° Paragraph 2 is replaced by the following:
"However, for markets in the special sectors and for concessions relating to an activity resumed in Schedule II of the Concessions Act, when a person introduces a claim for damages and interests in respect of costs incurred in the preparation of an offer or participation in the proceedings, it is only required to prove that there is a violation of the European Union's right to public procurement or concessions or public procurement law or »;
3° the article is supplemented by two paragraphs written as follows:
"In open or restricted proceedings, where the most advantageous offer is determined on the sole basis of the price, the contract must be awarded to the bidder who has delivered the lowest regular offer, subject to a lump sum allowance of ten percent of the amount, excluding the value added tax, of this offer. This lump-sum allowance may be supplemented by an allowance for compensation for the totality of the damage, when it results from an act of corruption within the meaning of Article 2 of the Civil Convention on Corruption, made in Strasbourg on 4 November 1999.
The restorative allowance referred to in Article 11bis of the Laws on the Council of State, coordinated on 12 January 1973, constitutes damages or a lump sum allowance within the meaning of this Article. "
Art. 26. In section 17 of the Act, the following amendments are made:
(a) in the first sentence of paragraph 1^er, the words "or a concession" are inserted between the word "marked" and the word "conclued";
(b) in paragraph 1^er1° is replaced by the following:
"1° subject to Article 18, where the procuring authority has entered into a contract or concession without publication at the European level of a notice of contract or notice of concession, whereas this is nevertheless required by the European Union law in respect of public procurement or concessions or by law in respect of public procurement or concessions; »;
(c) in paragraph 1^er, 2°, the words "or concession" are inserted between the word "marked" and the words "without respect";
(d) paragraph 1^er, 2°, b), is replaced by the following:
"(b) is accompanied by a violation of the European Union's right to public procurement or concessions or public procurement or concession legislation and if the latter violation has compromised the chances of a bidder to obtain the contract or concession,"
(e) in paragraph 1^er, 3°, the word "the" is replaced by the word "one";
(f) in the first sentence of the second paragraph, the words "or concessionaire" are inserted between the words "adjudicate" and the words "are called to cause";
(g) in the second sentence of the second paragraph, the words "or the concessionaire" are inserted between the words "the identity of the buyer" and the words "they are required";
(h) in the third paragraph, the words "market" are replaced by the words "market or concession".
Art. 27. In section 18 of the Act, as amended by the Act of 4 December 2013, the following amendments are made:
(a) paragraph 1^er is replaced by the following:
"The declaration of absence of effects referred to in section 17, paragraph 1^er, 1°, does not apply if the procuring authority, although considering that the procurement of the contract or concession without publication at the European level of a notice of contract or notice of concession is authorized under the provisions of the European Union law in respect of public procurement or concessions and legislation in respect of public procurement or concessions,
1° has previously published in the Official Journal of the European Union a notice of ex-voluntary transparency, in accordance with the models set out in the Commission's Implementing Regulation (EU) No. 2015/1986 of 11 November 2015 establishing the standard forms for the publication of notices as part of the procurement of public contracts and repealing the Implementing Regulation (EU) No. 842/2011, expressing its intention to conclude the contract or concession,
2° has not entered into the contract or concession before the expiry of a period of not less than ten days from the date of publication of this notice to the Official Journal of the European Union. »;
(b) paragraph 3 is supplemented by the words "and for concessions relating to an activity resumed in Schedule II of the Concessions Act. ";
(c) in paragraph 4, the second part is supplemented by the words "or concession";
(d) in paragraph 4, the 3rd is replaced by the following:
"3° the justification for the decision of the procuring authority to enter the market or concession without publication at the European level of a market notice or notice of concession; »;
e) in paragraph 4, 4°, the words "or concession" are inserted between the word "marked" and the word "and".
Art. 28. In article 19 of the same law, the words "or a concession" are inserted between the word "marked" and the word "unexpected".
Art. 29. Section 20 of the Act is replaced by the following:
"Art. 20. The appeal proceedings may not consider a market or concession that has no effect, even if it has been unlawfully concluded for reasons referred to in Article 17, if it finds, after having examined all relevant aspects, that compelling reasons of general interest require that the effects of the market or concession be maintained.
In this case, the appeal body shall substitute the sanctions referred to in Article 22.
With respect to the decision not to declare a market or concession that has no effect, the economic interest in that the market or concession produces its effects can only be considered a compelling reason in the event that, in exceptional circumstances, the absence of effects would have disproportionate consequences.
However, the economic interest directly related to the market or concession concerned is not a compelling cause of general interest. The economic interest directly related to the market or concession includes, among other things, the costs arising from delay in the performance of the contract, the launch of a new procedure, the change of economic operator for the performance of the contract and legal obligations resulting from the absence of effects. "
Art. 30. In article 21 of the same law, the words "or concession" are inserted between the word "marked" and the words "when concluded".
Art. 31. In section 22 of the Act, the following amendments are made:
1° in paragraph 1^erParagraph 1^er, the words "or concession" are inserted between the word "marked" and the words "or imposed";
2° in paragraph 1^er, paragraph 2, the words "or the concessionaire" are inserted between the words "the adjudicator" and the words "are called to the cause" and the words "or the concessionaire" are inserted between the words "the adjudicator" and the words "once it is required";
3° paragraph 1^erParagraph 5 is replaced by the following:
"The financial penalty is not more than 10% of the amount excluding tax on the value added of the awarded market or 5% of the value of the assigned concession, excluding value added tax. »;
4° in paragraph 2, the words "or concession" are added each time after the word "marked";
5° in paragraph 2, 1°, in the Dutch text, the word "stellen" is replaced by the word "dienen";
6° in paragraph 2, 2°, the words "or concessions" are inserted each time after the words "public markets".
Art. 32. In section 23 of the Act, the following amendments are made:
1° paragraph 1^er is supplemented by paragraph 2, which reads as follows:
"When this Act provides for an obligation of communication, in the absence of simultaneous communication between consignments, the deadlines start on the date of the last consignment. In any case, the deadlines begin to run only if the motivation has been communicated. »;
2° paragraph 2 is supplemented by the words:
", without prejudice to Article 9/1, § 2, paragraph 2."
3° in paragraph 3, in the Dutch text, the word "ingesteld" is replaced by the word "ingediend";
Paragraphs 4 and 5 are replaced by the following:
Ҥ4. Without prejudice to the provisions applicable to the restorative allowance referred to in Article 11bis of the Laws on the Council of State, coordinated on 12 January 1973, the remedy for damages and the application for lump-sum compensation referred to in Article 16 shall be introduced within five years.
§ 5. An appeal for a declaration of absence of effects referred to in Article 17 shall be filed within thirty days of the day on which the procuring authority is:
1° issued the notice of award of the contract or concession in accordance with the provisions for that purpose, where the procuring authority has decided to pass the contract or concession without prior publication of a notice of contract or concession in the Official Journal of the European Union and the Bulletin of Claims and that the notice of award of the contract or concession contains the justification of that decision, or
2° informed the relevant candidates and bidders of the conclusion of the contract or concession by simultaneously communicating the reasoned decision concerning them.
The period of appeal shall be six months, beginning on the day of the conclusion of the contract or concession, when the procuring authority fails to comply with the provisions of paragraph 1^er.
5° in paragraph 6, in the Dutch text, the words "De in artikel 22 bedoelde vordering" are replaced by the words "Het in artikel 22 bedoelde verhaal".
Art. 33. In section 24 of the Act, the following amendments are made:
1° to paragraph 1^er, the words "14 and 15" are replaced by the words "14, 15 and 16";
2° a paragraph, as follows, is inserted between subparagraphs 1^er and 2:
"For the appeal procedure referred to in Article 16, the appeal proceedings shall also be the judicial judge when the procuring authority is an authority referred to in Article 14, § 1^erco-ordinated laws on the Council of State and a restorative compensation as referred to in Article 11bis of the same coordinated laws were not requested. »;
3° in paragraph 2, which became paragraph 3, the number "16", is repealed.
Art. 34. In section 27 of the Act, the following amendments are made:
1st paragraph 1^er is completed by the words "or 2.5 per cent of the value of the assigned concession, excluding value added tax";
2° in paragraph 2, the words "the above percentage may be increased" are replaced by the words "the above percentages may be increased".
Art. 35. In the title of Chapter 2 of Title II of the same law, the words "and concessions" are inserted after the word "marks".
Art. 36. In section 28 of the Act, the following amendments are made:
1° to paragraph 1^er, the words "by the King" are deleted;
2 ° the item is supplemented by a paragraph written as follows:
"This chapter also applies to concessions whose value does not reach the amount set for European advertising and subject to the Concessions Act. ".
Art. 37. Section 29 of the Act is replaced by the following:
"Art. 29. § 1^er. For markets whose expenditure to be approved excluding value added tax exceeds 85,000 euros in the conventional sectors, and 170,000 euros in the special sectors, only articles 4, 5, 7, 8, § 1^erParagraph 1^er, 9, 9/1 and 10 apply.
For markets referred to in paragraph 1^er dealing with social services or other specific services as referred to in Schedule III of the Public Procurement Act, section 4, paragraph 1^er, 1° to 3°, however, is not applicable.
For markets referred to in paragraph 1^er spent in the conventional sectors whose non-tax expenditure on value added is less than the amounts referred to in section 41, § 1^er, from the Public Procurement Act in the conventional sectors, the procuring authority is required to establish a reasoned decision in the event of recourse to the direct negotiated procedure with prior publication. This decision includes grounds for law or fact justifying or allowing the use of this procedure.
§ 2. The King may adapt the amounts referred to in § 1^erParagraph 1^erthe amounts of the corresponding thresholds for the use of the negotiated procedure without prior publication or the negotiated procedure without prior competition. ".
Art. 38. Section 29/1 of the Act, inserted by the Act of 4 December 2013, is replaced by the following:
"Art. 29/1. § 1^er. For markets whose expenditure to be approved excluding value added tax does not exceed the applicable thresholds referred to in Article 29 § 1^erParagraph 1^erthe procuring authority shall prepare a reasoned decision in the following cases:
1° when deciding on the selection of candidates when the procedure includes a first phase involving the introduction of applications for participation;
2° when it assigns a contract, regardless of the procedure;
3° when it renounces the procurement and, if necessary, decides to initiate a new procurement procedure.
In addition, the procuring authority shall communicate to:
1° any candidate not selected his/her non-selection, where the award procedure includes a first phase involving the introduction of applications for participation and as soon as the candidate has made the decision of selection;
2° any candidate or bidder not selected his or her non-selection, any bidder whose offer was rejected or not chosen, the rejection of his or her offer or the fact that it was not chosen, and to the successful bidder, the decision relating to his or her choice and as soon as it made the award decision.
Within thirty days of the date of the sending of the information referred to in paragraph 2, the applicant or bidder concerned may request in writing to the procuring authority to provide the following additional information:
1° any candidate or bidder not selected: the reasons for his non-selection, extracted from the reasoned decision;
2° any bidder whose offer was rejected: the reasons for rejection, extracted from the reasoned decision;
3° any bidder whose offer has not been accepted and the buyer: the reasoned decision.
The procuring authority shall provide such additional information within fifteen days of the date of receipt of the application.
However, the procuring authority may use the terms of Article 8, § 1^erParagraph 1^er, and attach to the information, as the case may be, the reasons set out in paragraph 3. The reasoned decision is attached to the information when the procuring authority makes applicable Article 11, paragraph 1^erin accordance with Article 30, § 1^erParagraph 2.
§ 2. For the markets referred to in § 1^erParagraph 1^er, the procuring authority, as soon as it has taken the decision to abandon the procurement of the contract and, if necessary, to initiate a new procurement procedure, shall communicate it to each candidate or bidder concerned.
Within 30 days of the date of the sending of this information, the applicant or bidder concerned may request in writing to the procuring authority to communicate the reasoned decision.
The procuring authority shall communicate the reasoned decision within fifteen days of the date of receipt of the application.
§ 3. When the procuring authority, for the markets referred to in § 1^erParagraph 1^er, decides on the qualification or withdrawal of the qualification within the framework of a qualification system, it writes a reasoned decision. As soon as it has made this decision, the procuring authority shall communicate this qualification or withdrawal to each candidate concerned.
Within 30 days of the date of sending this information, the applicant concerned may request in writing to the procuring authority to provide the reasons for this decision, extracted from the reasoned decision.
The procuring authority shall communicate the excerpt of the reasoned decision within fifteen days from the date of receipt of the application.
§ 4. When the procuring authority, for the markets referred to in § 1^erParagraph 1^er, decides to resort to a competitive dialogue, it writes a reasoned decision.
In addition, a reasoned decision is drafted for the markets referred to in § 1^erParagraph 1^erwhere the procuring authority takes, in the context of competitive dialogue, a decision on the solution(s) that can meet its needs and requirements. As soon as the decision is made, the procuring authority shall communicate it to each participant concerned. Within 30 days of the date of sending this information, the participant concerned may request in writing to the procuring authority to provide the decision with the reasons. The procuring authority shall communicate the reasoned decision within fifteen days of the date of receipt of the application.
When the procuring authority decides, for the markets referred to in § 1^erParagraph 1^erwithin the framework of the competitive dialogue, to declare the dialogue concluded, it also drafts a reasoned decision. As soon as the decision is made, the procuring authority shall communicate it to each participant concerned. Under the same terms and conditions as those referred to in the preceding paragraph, the participant concerned may then request in writing to the procuring authority to communicate the reasoned decision.
§ 5. When the procuring authority decides, for the markets referred to in § 1^erParagraph 1^er, within the framework of the dynamic acquisition system, not to admit a participant, she writes a reasoned decision. As soon as the decision is made, the procuring authority shall communicate it to each participant concerned. Within thirty days of the date of sending this information, the participant concerned may request in writing to the procuring authority to provide the reasons for this decision, extracted from the reasoned decision.
The procuring authority shall communicate the excerpt of the reasoned decision within fifteen days from the date of receipt of the application.
§ 6. The procuring authority shall make communications of the decisions and reasons referred to in §§ 1^er 5, by fax, e-mail or electronic platforms referred to in Article 14, § 7, of the Public Procurement Act and, on the same day, by registered mail.
Communications referred to in §§ 1^er to 5 indicate the existence of remedies, their deadlines and the competent authorities at least by explicit reference to articles 14, 15, 23 and 24.
In the absence of these references, the time limit for the introduction of the annulment appeal referred to in Article 23, § 2, shall take place four months after the communication of the motivation.
§ 7. §§ 1^er 6 does not apply to low-value markets referred to in sections 92 and 162 of the Public Procurement Act.
§ 8. Article 4, paragraph 3, and Article 10 shall apply to the markets referred to in § 1^erParagraph 1^er. "
Art. 39. In the same law, an article 29/2 is inserted as follows:
"Art. 29/2. For concessions covered by this chapter, only articles 4/1, 5/1, 7, 8, § 1^erParagraph 1^er, 9, 9/1 and 10 apply. "
Art. 40. Section 30 of the Act is replaced by the following:
"Art. 30. § 1^er. Article 11 is applicable to works contracts subject to mandatory advertising at the Belgian level whose offer to be approved without tax on value added exceeds half of the amount fixed for European advertising as well as to work concessions whose value exceeds half of the amount fixed for European advertising.
The procuring authority may render Article 11, paragraph 1^erapplicable to markets and concessions referred to in this chapter and not referred to in paragraph 1^er.
§ 2. Once concluded, the contract or concession may not be suspended or declared void of any effect by the appeal proceeding. "
Art. 41. In article 31 of the same law, the words "and concessions" are inserted between the word "marked" and the word "seen".
Art. 42. In section 32 of the Act, the following amendments are made:
1° to paragraph 1^er, the words " § 1^er," are inserted between the number "30," and the words "paragraph 1^er";
2° Paragraph 2 is replaced by the following:
"In this case, the words "at the European level" and "Official Journal of the European Union", mentioned in these provisions, are replaced by the words "at the Belgian level" and "Bulletin des Adjudications". »;
3° in paragraph 3, the words " § 1^er," are inserted between the number "30," and the words "paragraph 2".
Art. 43. In section 33 of the Act, the following amendments are made:
1° the words "and concessions" are inserted each time after the word "marked";
2° the words " § 1^er," are inserted between the number "30," and the words "paragraph 1^er".
Art. 44. Article 34, § 1^erthe following amendments are made to the Act:
1° the words "or a concession" are inserted between the words "the conclusion of a market" and the words "it considers";
2° the words "or concessions" are inserted between the words "in public procurement" and the words "was committed".
Art. 45. In the title of Title III of the same law, in the Dutch text, the word "ressorterende" is replaced by the word "ressorterend".
Art. 46. In section 35 of the Act, as amended by the Act of 4 December 2013, the following amendments are made:
1° in paragraph 2, the words "and markets excluded on the basis of essential security interests" are inserted between the words "European Union" and the words ", only the articles".
2° the article is supplemented by a paragraph written as follows:
"Where the initial estimate of the market or concession is less than the amount set for the European advertising, but the non-tax amount on the value added of the offer to be approved is more than 20% than that amount set, this chapter shall apply, except for section 36, paragraph 1^er1° to 5°, paragraphs 2 and 3, and section 39, and on the understanding that the application of chapter 2 precedes that of this chapter. This paragraph does not apply in the case provided for in section 44, 1°. "
Art. 47. In article 37, 1°, of the same law, the words "the date of the decision" are inserted between the words "adjudicative authority" and the word "object".
Art. 48. Section 39, § 2, paragraph 2, of the Act is replaced by the following:
"Previous to the withdrawal of the qualification of a contractor, supplier or service provider, the procuring authority shall communicate to the contractor this intention and the reasons justifying it at least fifteen days before the date provided to terminate the qualification, as well as the opportunity to make representations within that same period. "
Art. 49. In section 40 of the Act, the following amendments are made:
1° in the Dutch text, except for the first sentence of § 1^er, the word "kennisgeving" is each time replaced by the word "mededeling";
2° in paragraph 1^erParagraph 1^er, in the Dutch text, the words "doet de aanbestedende instantie kennisgeving van" are replaced by the words "deelt de aanbestedende instantie het volgende mee";
3° paragraph 1^erParagraph 3 is repealed;
4° in paragraph 2, in the Dutch text, the word "ingesteld" is each time replaced by the word "ingediend".
Art. 50. In the same Act, an article 41/1 is inserted, which reads as follows:
"Art. 41/1. § 1^er. The procuring authority shall immediately make the communications referred to in sections 39, 40 and 41 by fax, e-mail or other electronic means and, on the same day, by registered mail.
§ 2. Communications referred to in paragraph 1^er indicates the existence of remedies, their deadlines and the competent authorities at least with an explicit reference to articles 46, 47, 55 and 56.
In the absence of these references, the time limit for the introduction of the annulment appeal referred to in Article 55, § 2, shall take four months after the communication of the reasoned decision. "
Art. 51. In section 43 of the Act, the following amendments are made:
1st paragraph 1^er is replaced by the following:
"The conclusion of the contract that follows the award decision cannot, in any case, take place before the expiry of a fifteen-day period from the communication of the decision motivated to the candidates, participants and bidders concerned in accordance with section 41/1. In the absence of simultaneousity between the consignments, the deadline shall take place for the candidate, participant or bidder concerned on the date of the last consignment. »;
2° in paragraph 3, in the Dutch text, the word "via" is inserted between the words "e-mail of" and the words "een ander elektronisch middel".
Art. 52. In section 47 of the Act, the following amendments are made:
1° to paragraph 1^er, the words "a risk of serious harm difficultly repairable" are replaced by the words "emergency";
2° Paragraph 2 is replaced by the following:
"According to the competent court of appeal in accordance with Article 56, the application for suspension and the application for interim measures shall be brought before the Council of State, exclusively in accordance with the procedure of extreme urgency and before the judicial judge, exclusively in accordance with the procedure of reference. "
Art. 53. Section 48 of the Act is supplemented by a paragraph written as follows:
"The restorative allowance referred to in Article 11bis of the Laws on the Council of State, coordinated on 12 January 1973, constitutes damages and interests within the meaning of this Article. "
Art. 54. Article 49, paragraph 1^er, 2°, b), of the same law is, in the Dutch text, replaced by the following:
"b) deze schending gepaard gaat met een schending van het recht van de Europese Unie inzake overheidsopdrachten of van de wetgeving overheidsopdrachten, waardoor de kansen van een inschrijver om de opdracht te krijgen nadelig werden beïnvloed; "
Art. 55. In section 50 of the Act, the following amendments are made:
1° to paragraph 1^er, 1°, the words "Executive Regulation (EU) No. 842/2011 of the Commission of 19 August 2011 establishing the standard forms for the publication of notice in the context of the procurement of public contracts and repealing Regulation (EC) No. 1564/2005" are replaced by the words "Executive Regulation (EU) no. 2015/1986 of the Commission of 11 November 2015 establishing the standard forms
2° to paragraph 1^er2°, the words "the next day" are repealed;
3° in paragraph 6, the words "Executive Regulation (EU) No. 842/2011" are replaced by the words "Executive Regulation (EU) No. 2015/1986" and the words "present law" are replaced by the words "Law of defence and security".
Art. 56. In section 54 of the Act, the following amendments are made:
1° in paragraph 1^er, paragraph 5, the number "15" is replaced by the number "10";
2° in paragraph 2, in the Dutch text, the word "stellen" is replaced by the word "dienen" and the word "van" is inserted between the word "of" and the words "of wetgeving".
Art. 57. In section 55 of the Act, the following amendments are made:
1° paragraph 1^er is supplemented by a paragraph 2 which reads as follows:
"When this Act provides for an obligation of communication, in the absence of simultaneous communication between consignments, the deadlines start on the date of the last consignment. In any case, the deadlines begin to run only if the motivation has been communicated. »;
2° paragraph 2 is supplemented by the words ", without prejudice to Article 41/1, § 2, paragraph 2."
3° in paragraph 3, in the Dutch text, the word "ingesteld" is replaced by the word "ingediend";
Paragraph 4 is replaced by the following:
“§4. Without prejudice to the provisions applicable to the restorative allowance referred to in Article 11bis of the Laws on the Council of State, coordinated on 12 January 1973, the remedy of damages referred to in Article 48 shall be filed within a period of five years. »;
5° in paragraph 5, in the Dutch text, the words "De in artikel 49 bedoelde vordering" are replaced by the words "Het in artikel 49 bedoelde verhaal";
6° in paragraph 6, in the Dutch text, the words "De in artikel 54 bedoelde vordering" are replaced by the words "Het in artikel 54 bedoelde verhaal".
Art. 58. In section 56 of the Act, the following amendments are made:
1° to paragraph 1^er, the words "46 and 47" are replaced by the words "46, 47 and 48";
2° a paragraph written as follows is inserted between subparagraphs 1^er and 2:
"For the appeal procedure referred to in Article 48, the appeal proceedings shall also be the judicial judge when the procuring authority is an authority referred to in Article 14, § 1^erco-ordinated laws on the Council of State and a restorative compensation as referred to in Article 11bis of the same coordinated laws were not requested. »;
3° to paragraph 2, which became paragraph 3, the number "48" is repealed.
Art. 59. Article 61, paragraph 1^er, from the same law, the words "41 and 42" are replaced by the words "41, 41/1 and 42".
Art. 60. Section 62 of the Act is replaced by the following:
"Art. 62. § 1^er. Section 43 is applicable to works contracts subject to mandatory advertising at the Belgian level whose offer to be approved without tax on value added exceeds half of the amount fixed by the King for European advertising. However, this paragraph does not apply to the defence contracts referred to in Article 346, 1, (b), of the Treaty on the Functioning of the European Union.
The procuring authority may render section 43, paragraph 1^erapplicable to markets covered by this chapter and not covered by paragraph 1^er.
§ 2. Once concluded, the market may not be suspended or declared to be devoid of any effect by the appeal proceeding. "
Art. 61. In section 64 of the Act, the following amendments are made:
1° to paragraph 1^er, the words " § 1^er," are inserted between the number "62," and the words "paragraph 1^er".
2° in paragraph 3, the words " § 1^er," are inserted between the number "62," and the words "paragraph 2".
Art. 62. In article 65 of the same law, the words " § 1^er," are inserted between the number "62," and the words "paragraph 1^er".
Art. 63. The King shall determine the date on which this Act comes into force.
Given in Brussels on 16 February 2017.
PHILIPPE
By the King:
The Prime Minister,
Ch. MICHEL
Minister of Seurity and Interior,
J. JAMBON
Minister of Justice
K. GEENS
Seal of the state seal:
Minister of Justice,
K. GEENS
____
Note
(1) House of Representatives
(www.lachambre.be)
Documents: 54-2168.
Full report: January 26, 2017.