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17 JUIN 2013. - Public Procurement Motivation, Information and Appeals Act and certain contracts of work, supplies and services (1)

ALBERT II, King of the Belgians,
To all, present and to come, Hi.
The Chambers adopted and We sanction the following:
PART I^er. - General provisions and definitions
Article 1^er. This Act regulates a matter referred to in Article 77 of the Constitution.
It transposes:
1° Council Directive 89/665/EEC of 21 December 1989, co-ordinating the legislative, regulatory and administrative provisions on 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° Article 49 of Directive 2004/17/EC of the European Parliament and of the Council of 31 March 2004 coordinating procurement procedures in the water, energy, transport and postal services sectors;
4° Article 41 of Directive 2004/18/EC of the European Parliament and of the Council of 31 March 2004 on the coordination of procedures for the procurement of public works, supplies and services;
5° 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.
Art. 2. For the purposes of this Act:
1° market: the public market or the contract of works, supplies or services, the framework agreement, the project competition and the concession of public works within the meaning of the law of 15 June 2006 or the law of 13 August 2011, as the case may be;
2° procuring authority: the procuring authority, public enterprise or procuring entity within the meaning of the Act of 15 June 2006 or the Act of 13 August 2011, as the case may be;
3° applicable candidate: according to the definitions of this Act and the Act of 15 June 2006 or the Act of 13 August 2011, as the case may be, the candidate to whom the procuring authority, on the occasion of a contract, has not notified the reasons for his non-selection before the award decision is notified to the bidders concerned;
4° concerned participant: as defined in this Act and the Act of 15 June 2006 or the Act of 13 August 2011, as the case may be,
- in the case of a dynamic procurement system: the participant to whom the procuring authority has not communicated the reasons for his or her non-selection or the refusal of his or her indicative offer prior to the award decision was not notified to the bidders concerned;
- in the case of a competitive dialogue: the participant to whom the procuring authority has not communicated the reasons for which his solution has not been chosen before the award decision has been notified to the bidders concerned;
5th bidder concerned: the bidder not permanently excluded from participation in the proceedings, by a reasoned decision that has been notified to him and that is no longer subject to appeal before the appeal proceedings or has been tried lawful by the appeal body;
6th instance of appeal: the competent court under Article 24 or Article 56;
7° the Act of 15 June 2006: the Act of 15 June 2006 on public procurement and certain contracts of work, supplies and services;
8° the Act of 13 August 2011: the Act of 13 August 2011 on public procurement and certain contracts of work, supplies and services in the areas of defence and security;
9° conventional sectors: sectors covered by the provisions of securities I^er and II of the Act of 15 June 2006;
10° special sectors: sectors covered by the provisions of securities I^erIII and IV of the Act of 15 June 2006.
PART II. - Motivation, information and remedies for public procurement under the Act of 15 June 2006
CHAPTER 1^er. - Markets reaching European thresholds
Section 1^re. - Scope of application
Art. 3. This chapter applies to markets, qualification systems and dynamic acquisition systems that fall under the Act of 15 June 2006 and reach the amount set by the King for European advertising.
Section 2. - Reasoned decision
Art. 4. The procuring authority shall issue a reasoned decision:
1° when it decides to use a negotiated procedure without advertising;
2° when it decides to resort to a procedure negotiated with advertising in the conventional sectors;
3° when it decides to use competitive dialogue;
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 competitive dialogue, to declare the dialogue concluded;
7° when it decides, within the framework of a dynamic acquisition system, not to select a participant or to reject a participant whose indicative offer is not in accordance with market documents;
8° when it assigns a contract, regardless of the procedure;
9° when it renounces the contracting and, if necessary, decides to launch a new market.
With respect to the 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°, 6°, 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 urgent emergency in the case and in the conditions provided for in Article 26, § 1^er1°, c) of the Act of 15 June 2006;
2° if it is classified and purchased at a stock exchange in the case and under the conditions provided for in Article 26, § 1^er3°, d) of the Act of 15 June 2006;
3° where supplies are purchased under particularly advantageous conditions, in the case and under the conditions provided for in Article 26, § 1^er3°, e), of the law of 15 June 2006.
Art. 5. The reasoned decision referred to in Article 4 shall, in accordance with the procedure and type of decision:
1 the name and address of the procuring authority, the object and the amount of the contract to be approved;
2° in the event of a negotiated procedure or a competitive dialogue, the grounds for law and fact justifying or allowing the use of this procedure;
3° names of candidates or bidders;
4° in case of competitive dialogue or dynamic acquisition system, the names of the participants;
5° in case of qualification system:
- the names of qualified and unskilled candidates and the grounds of law and fact of the relevant decisions based on the criteria and rules of qualification established in advance;
- the names of candidates whose qualification is withdrawn and the grounds of law and fact of the relevant decisions based on the criteria and rules of qualification established in advance;
6° the names of the candidates or bidders not selected and selected and the reasons for law and fact of the relevant decisions;
7° - in the event of a competitive dialogue, the names of the participants whose solution has or has not been chosen at the end of the dialogue and the grounds for law and decision making;
- in the event of a dynamic acquisition system, the names of the unselected and selected participants and participants whose indicative offer has been rejected, because it is not in accordance with the market documents, and the reasons for law and fact related decisions;
8° the names of the bidders whose offer was deemed irregular and the grounds for law and de facto eviction. These reasons include the abnormality of prices and, where applicable, the finding of non-equivalence of the solutions proposed in relation to the technical specifications or their non-satisfaction with the expected performance or functional requirements;
9° the names of the successful bidder or of the participant(s) selected in the framework agreement and of the participants and bidders whose regular 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;
10° the grounds for law and fact for which the procuring authority may have waived the contract and, where applicable, the indication of the new award procedure followed.
Art. 6. The decision referred to in Article 5 shall be minutes and shall be transmitted to the European Commission at its request. In the conventional sectors, this report is supplemented by the indication of the market share that will be subcontracted, if known.
Section 3. - Information of candidates, participants and bidders
Art. 7. § 1^er. When the procedure includes a first phase involving the introduction of applications for participation, the procuring authority shall communicate to any non-selected candidate as soon as it has made the decision for selection:
1 the reasons for his non-selection, extracted from this decision;
2° in case of limitation, on the basis of a classification, of the number of candidates selected, the motivated selection decision.
The invitation to submit an offer cannot be addressed to the selected candidates prior to sending this information.
§ 2. In the event of the establishment and management of a qualification system, as soon as the awarding authority has made the decision based on the qualification, the awarding authority shall communicate to any unqualified candidate the reasons for its non-qualification, extracted from that decision. This communication takes place within the shortest time and no later than fifteen days from the date of the decision.
Prior to the withdrawal of the qualification of a contractor, supplier or service provider, the procuring authority shall notify the contractor in writing of this intention and of the reasons justifying it at least fifteen days before the date provided to terminate the qualification, as well as the possibility of making representations within that same period.
§ 3. In the event of a competitive dialogue, as soon as it has made the decision on the solution(s) that could meet its needs and requirements, the procuring authority shall communicate the reasoned decision on this choice to participants whose solution is not chosen.
§ 4. In the event of a dynamic acquisition system, as soon as the decision was made, the procuring authority shall communicate:
1° to any non-selected participant, the reasons for its non-selection, extracted from the reasoned decision;
2° to any rejected participant, the reasons for rejecting his indicative offer, extracted from the reasoned decision.
Art. 8. § 1^er. As soon as the award decision is made, the procuring authority shall communicate:
1° to any unselected bidder, the reasons for his non-selection, extracted from the reasoned decision;
2° to any bidder whose offer was deemed to be irregular, the reasons for its eviction, extracted from the reasoned decision;
3° to any bidder whose offer was not chosen and to the successful bidder, the reasoned decision.
The communication also includes:
1° the precise mention of the exact duration of the period referred to in Article 11, paragraph 1^er;
2° the recommendation to notify the procuring authority within that same period, by fax, e-mail or any other electronic means in the event that the applicant makes an application for suspension in accordance with section 15;
3° the mention of the fax number or the e-mail address to which the warning referred to in Article 11, paragraph 3, may be sent.
The procuring authority shall immediately make such communication by fax or by e-mail or any other electronic means and, on the same day, by registered mail.
§ 2. The communication referred to in § 1^er does not create any contractual undertaking with respect to the successful bidder and suspends the period in which bidders remain engaged by their offer, provided that such delay and Article 11 are applicable.
For all offers introduced for this market, the suspension of this period ends:
1° failing to request a suspension referred to in Article 11, paragraph 2, after the last day of the period referred to in Article 11, paragraph 1^er;
2° in the event of a suspension application referred to in Article 11, paragraph 2, on the day of the decision of the appeal proceeding referred to in Article 15;
3° in any case not later than 45 days after the communication referred to in § 1^er.
Art. 9. As soon as it has made the decision to abandon a contract and, if necessary, to launch a new contract, the procuring authority shall communicate the reasoned decision to the candidates, participants and bidders concerned.
Art. 10. § 1^er. Some information may not be disclosed where their disclosure would hinder the application of a law, would be contrary to the public interest, would prejudice the legitimate commercial interests of public or private companies or could adversely affect fair competition between companies.
§ 2. The procuring authority and any person who, as a result of his or her duties or duties entrusted to him or her by the procuring authority, is aware of confidential market information or that relates to the procurement and performance of the contract, communicated by candidates, bidders, contractors, suppliers or service providers, disclose none of that information. This information includes technical or commercial secrets and confidential aspects of offers.
As long as the procuring authority has not made a decision, as the case may be, with respect to the selection or qualification of candidates or participants, the regularity of bids, the award of the contract or the renunciation of the procurement, candidates, participants, bidders and third parties have no access to the documents relating to the proceedings, including applications for participation or qualification, to bids and to internal documents.
Section 4. - Waiting time
Art. 11. The conclusion of the contract following the award decision may not, in any case, take place before the expiry of a period of fifteen days from the day after the decision is sent to the candidates, participants and bidders concerned in accordance with Article 8, § 1^erParagraph 3. In the absence of simultaneousity between these shipments, the deadline shall take place for the candidate, participant or bidder concerned, the day after the last shipment.
Where an application for a suspension of the performance of the award decision referred to in section 15 is filed within the time limit referred to in paragraph 1^er, the procuring authority may not enter into the contract before the first-degree appeal proceedings, if any, decide either on the request for interim measures or on the application for suspension.
To this end, the applicant is invited to notify the procuring authority within that time limit, preferably by fax or e-mail or any other electronic means, of the introduction of such a request.
The conclusion of the contract may take place at the end of the period referred to in paragraph 1^er where no application for suspension is filed within the above-mentioned period.
The ban on the conclusion of the contract shall be granted to the sole author of a request for suspension filed within the period referred to in paragraph 1^er.
Art. 12. The conclusion of the contract may take place without applying Article 11 in the following cases:
1° where prior European advertising is not mandatory;
2° where the only bidder concerned is the one to whom the contract is awarded and in the absence of interested candidates;
3° when it is a market based on a framework agreement.
Art. 13. The suspension of the enforcement of the award decision by the appeal proceeding shall, in full right, result in the suspension of the performance of the contract, if any, in violation of Article 11.
The procuring authority shall inform the adjudicator without delay of the suspension and shall, as the case may be, order the court not to commence or stop the execution of the contract.
Where, after the suspension of the full right of the performance of the contract, no request for the cancellation of the award decision or declaration of absence of market effects is filed within the applicable time limits provided for in section 23, both the suspension of the performance of the award decision and that of the contract are lifted by the appeal proceeding.
Section 5. - Procedures for appeal
Sub-section 1^re. - Cancellation
Art. 14. At the request of any person who has or has had an interest in obtaining a specified market and who has been or may have been adversely affected by the alleged violation, the appeals body may revoke decisions made by the procuring authorities, including those with discriminatory technical, economic and financial specifications, on the grounds that such decisions constitute a diversion of power or violence:
1° Community law on public procurement applicable to the market concerned, as well as public procurement legislation;
2° the constitutional, legal or regulatory provisions and general principles of law applicable to the market concerned;
3° the market documents.
Sub-section 2. - Suspension
Art. 15. Under the same conditions as those referred to in Article 14, the appeal proceedings may, in the presence of a serious means or an apparent illegality, without proof of a risk of serious harm difficultly repairable, be brought, if any under penalty of trespass, suspend the execution of the decisions referred to in Article 14 and, with respect to the Council of State, as long as it remains seized of an appeal:
1° order interim measures to correct the alleged violation or to prevent the infringement of the interests concerned;
2° order the interim measures necessary for the execution of its decision.
According to the competent court of appeal in accordance with Article 24, the application for suspension and, as long as it is filed separately, the application for interim measures shall be submitted to 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.
The appeal proceeding may, on its own motion or at the request of one of the parties, take into account the likely consequences of the suspension of execution and interim measures for all interests that may be adversely affected, as well as the public interest, and may decide not to grant suspension of execution or interim measures where their negative consequences may prevail over their benefits.
The decision not to grant suspension of execution or interim measures shall not prejudice the other claims of the person requesting such measures.
The application for interim measures may be filed with the application for suspension referred to in paragraph 1^er or, where the suspension of the execution of the decision is ordered, with the cancellation request referred to in section 14 or separately.
Subsection 3. - Damages and interests
Art. 16. The appeal proceedings shall grant damages to persons aggrieved by one of the violations referred to in Article 14 committed by the procuring authority and before the conclusion of the contract, provided that the proceeding considers the damage and the causal relationship between the procuring authority and the alleged violation to be established.
However, for markets in the special sectors, when a person applies for damages in respect of costs incurred in preparing an offer or participating in the proceedings, it is only required to prove that there is a violation of community law in public procurement or public procurement legislation and that it had a real chance to win the market, a chance that, as a result of this violation, was compromised.
Sub-section 4. - Declaration of absence of effects
Art. 17. At the request of any interested person, the appeal proceedings declare that there is no effect on a contract concluded in each of the following cases:
1° subject to Article 18, where the procuring authority has entered into a market without a prior European advertisement, although this is required by Community law in public procurement or by public procurement legislation;
2° where the procuring authority has entered into the contract without respecting the period referred to in Article 11, paragraph 1^er, or without waiting for the first-degree appeal, if any, to decide, either on the request for a suspension or on the request for interim measures where that violation:
(a) has deprived a bidder of the opportunity to initiate or complete the suspension appeal referred to in Article 11, paragraph 2, and
(b) is accompanied by a violation of community law in public procurement or public procurement legislation and if the latter violation has compromised the chances of a bidder to obtain the market,
3° where the procuring authority has entered into the contract on the basis of a framework agreement without all conditions being fixed in this framework agreement, where there is a violation of the procedural rules determined by the King.
The procuring authority and the adjudicator are called to the cause. To this end, the procuring authority shall communicate the identity of the adjudicator as soon as it is required by the appellant.
The application for a declaration of absence of market effects may be filed with the cancellation request referred to in section 14 or separately.
Art. 18. Declaration of absence of effects referred to in Article 17, paragraph 1^er, 1°, does not apply if the procuring authority, although considering that the procurement of the market without a prior European advertisement is authorized under the provisions of Community law in public procurement and public procurement legislation,
1° has previously published in the Official Journal of the European Union a notice of transparency ex ante voluntary, in accordance with the model fixed by the King, expressing his intention to conclude the market, and
2° has not entered into the market before the expiry of a period of not less than ten days from the day after the publication of this notice in the Official Journal of the European Union.
The notice referred to in paragraph 1^er is also published in the Bulletin des Adjudications without the latter publication, however, being a condition of application of the exception to the declaration of absence of effects referred to in this section.
Publication in the Adjudication Bulletin is optional for markets in special sectors.
The notice referred to in paragraph 1^er contains the following information:
1° the name and contact information of the procuring authority;
2° the description of the object of the market;
3° the justification for the decision of the procuring authority to enter the market without prior European advertising;
4° the name and contact details of the bidder to which it was decided to assign the contract, and
5° where applicable, any other information deemed useful by the procuring authority.
Only the notice published in the Official Journal of the European Union and the Bulletin of Adjudications is an official publication value.
Art. 19. When it declares a market that has no effect, the appeal proceedings shall:
1° the retroactive cancellation of all contractual obligations, or
2° the limitation of the scope of the cancellation to the obligations that must still be executed.
In the case referred to in paragraph 1^er, 2°, the appeal body also makes a financial penalty referred to in section 22.
Art. 20. The appeal proceedings may not consider a market 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 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 that has no effect, the economic interest in that the market produces its effects can only be considered a compelling reason if, in exceptional circumstances, the absence of effects would have disproportionate consequences.
However, the economic interest directly linked to the market concerned is not a compelling cause of general interest. The economic interest directly linked to the market includes, among other things, the costs arising from delays 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. 21. Except as provided for in sections 13 and 17 to 20, the contract, once concluded, may not be suspended or declared void of effect by the appeals proceeding, irrespective of its nature.
Subsection 5. - Alternative sanctions
Art. 22. § 1^er. As an alternative penalty, the appeal proceeding may, on its own or at the request of an interested person, shorten the duration of the contract or impose a financial penalty on the procuring authority.
The procuring authority and the adjudicator are called to the cause. To this end, the procuring authority shall communicate the identity of the adjudicator as soon as it is required by the appellant.
The sanction is effective, proportionate and deterrent.
Where a sanction is pronounced, the appeal proceedings may take into account all relevant factors, including the seriousness of the violation, the behaviour of the procuring authority and the extent to which the contract continues to produce effects.
The financial penalty is up to 15% of the non-tax amount on the value added of the awarded market.
The award of damages does not constitute a penalty within the meaning of this section.
§ 2. At the request of any interested person and after appreciating all relevant aspects, the appeal proceedings shall impose a substitution penalty referred to in § 1^er where the procuring authority has entered into the contract in breach of Article 11, paragraph 1^er and 2, without the violation:
1° has deprived the bidder of the possibility of introducing a suspension application referred to in Article 11, paragraph 2, and
2° be accompanied by a violation of community law in public procurement or public procurement legislation, and that the latter violation may have compromised the bidder's chances of obtaining the market.
§ 3. Financial penalties imposed as substitute sanctions are paid to the Treasury.
Sub-section 6. - Time limits
Art. 23. § 1^er. The appeals are, barely irreceivable, brought within the time limits referred to in paragraphs 2 to 4, 5, paragraph 1^er, and 6, from publication, communication or knowledge of the act, as the case may be.
§ 2. The appeal for cancellation referred to in Article 14 shall be filed within sixty days.
§ 3. The application for suspension referred to in section 15 shall be filed within fifteen days. In the event of application of section 18, the deadline is ten days.
§ 4. The remedy of damages referred to in Article 16 shall be filed within five years.
§ 5. The appeal for declaration of absence of effects referred to in Article 17 shall be filed within thirty days of the day after the day on which the procuring authority is:
1° published the notice of award of the contract in accordance with the provisions of the King's Order, when the procuring authority has decided to make this contract without prior notice to the Official Journal of the European Union and the Bulletin of Adjudications and that the notice of award of the contract contains the justification of that decision, or
2° informed the relevant candidates and bidders of the conclusion of the contract by simultaneously communicating the reasoned decision concerning them.
The period of appeal shall be six months, beginning on the day after the day on which the contract was concluded, when the procuring authority does not comply with the provisions of paragraph 1^er.
§ 6. The use of alternative sanctions referred to in Article 22 shall be introduced within six months.
Sub-section 7. - Appeals bodies
Art. 24. The appeal proceeding for appeal proceedings referred to in Articles 14 and 15 is:
1° the administrative litigation section of the State Council when the procuring authority is an authority referred to in Article 14, § 1^ercoordinated laws on the State Council;
2° the judicial judge when the procuring authority is not an authority referred to in Article 14, § 1^ercoordinated laws on the State Council.
For appeal proceedings referred to in Articles 16, 17 and 22, the appeal proceedings shall be the judicial judge. For the declaration of absence of effects and alternative sanctions, the judge sits as in reference.
Art. 25. Unless the provisions of this Act derogate from it, the rules of jurisdiction and procedure before the appeal are those established by the laws and decrees relating to the appeal proceedings.
When the appeal body receives a request to suspend the performance of the award decision, it shall immediately inform the procuring authority.
The appeal body shall transmit to the Prime Minister, for a communication to the European Commission, the text of all decisions it makes pursuant to section 18. It also transmits to the Prime Minister other information on the functioning of the appeals procedures that may be requested by the European Commission.
Art. 26. The appeal proceedings must guarantee confidentiality and the right to respect business secrets in the light of the information contained in the files that are communicated to them by the parties to the case, including by the procuring authority who is required to file the entire record, while at the same time being able to know and consider such information. It is up to this body to decide to the extent and manner in which it is necessary to guarantee the confidentiality and secrecy of this information, with a view to the requirements of effective legal protection and respect for the rights of the parties to the dispute so that the proceedings, as a whole, respect the right to a fair trial.
Art. 27. In the event of a temporary and vexatious appeal, at the request of the procuring authority or the beneficiary of the act, the appeal proceedings may award adequate compensation to the procuring authority or the claimant's dependant beneficiary. In no case shall the total amount of any allowance exceed 5% of the value-added value-added amount of the awarded market.
The above-mentioned percentage may be increased by a royal decree deliberated in the Council of Ministers. This Royal Decree must be confirmed by law within twelve months of its entry into force.
CHAPTER 2. - Markets not reaching European thresholds
Section 1^re. - Scope of application
Art. 28. This chapter applies to markets that do not amount to the amount set by the King for European advertising and fall under the Act of 15 June 2006.
For the purpose of this chapter, it is also understood by "mark", the establishment of a list of selected candidates and the establishment of a qualification system.
Section 2. - Reasoned decision, information of candidates, participants and bidders and waiting period
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 and 10 apply.
The King may adapt the above amounts to the corresponding thresholds for the use of the negotiated procedure without advertising.
§ 2. For markets whose non-value-added tax expenditure does not exceed the applicable thresholds referred to in § 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 contracting and, if necessary, decides to launch a new market.
In addition, the procuring authority shall inform in writing:
1° any candidate not selected from the non-selection, where the award procedure includes a first phase involving the introduction of applications for participation and as soon as the decision has been decided on the basis of selection;
2° any candidate or bidder not selected from his non-selection, any bidder whose offer has been rejected or has not been chosen, the rejection of his offer or the fact that it has not been chosen, and the successful bidder, of the decision on his or her choice and as soon as it has 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 in writing within fifteen days from 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^erpursuant to Article 30, paragraph 2.
§ 3. For contracts referred to in § 2, paragraph 1^er, the procuring authority, as soon as it has made the decision to renounce the procurement of the contract and, if necessary, to launch a new contract, shall notify each candidate or bidder concerned in writing.
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 notify the decision in writing within fifteen days of the date of receipt of the application.
§ 4. When the procuring authority, for the markets referred to in § 2, paragraph 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 inform each candidate concerned of this qualification or withdrawal.
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 in writing the extract of the reasoned decision within fifteen days from the date of receipt of the application.
§ 5. When the procuring authority, for the markets referred to in § 2, paragraph 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 § 2, paragraph 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 it has made this decision, the procuring authority shall inform 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 notify the decision in writing within fifteen days from the date of receipt of the application.
When the procuring authority decides, for the markets referred to in § 2, paragraph 1^erwithin the framework of the competitive dialogue, to declare the dialogue concluded, it also drafts a reasoned decision. As soon as it has made this decision, the procuring authority shall inform 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.
§ 6. When the procuring authority decides, for the markets referred to in § 2, paragraph 1^er, within the framework of the dynamic acquisition system, not to select a participant or to reject its indicative offer, it writes a reasoned decision. As soon as it has made this decision, the procuring authority shall inform 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 in writing the extract of the reasoned decision within fifteen days from the date of receipt of the application.
§ 7. §§ 2 to 6 does not apply to contracts recognized by an accepted invoice.
Art. 30. 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 by the King for European advertising.
The procuring authority may render Article 11, paragraph 1^erapplicable to markets covered by this chapter and not covered by paragraph 1^er.
Once concluded, the market may not be suspended or declared to be devoid of any effect by the appeal proceeding.
Section 3. - Procedures for appeal
Art. 31. Articles 14 to 16 shall apply to the markets covered by this chapter.
Art. 32. When section 30, paragraph 1^er, is applicable, articles 12, 13, 17, 18, paragraphs 1^er and 4, and 19-22 are also applicable.
In this case, the words "European publicity" and "Official Journal of the European Union", mentioned in these provisions, are replaced by the words "Belgian publicity" and "Bulletin of Adjudications".
If the procuring authority, pursuant to Article 30, paragraph 2, voluntarily applies Article 11, paragraph 1^erArticles 13 and 17 to 22 are not applicable.
Art. 33. Articles 23, §§ 1^er 4 and 24 to 27 shall apply to markets covered by this chapter. The provisions of Article 23, §§ 5 and 6, are also applicable to the markets referred to in Article 30, paragraph 1^er.
CHAPTER 3. - Correcting mechanism
Art. 34. § 1^er. The European Commission may invoke the procedure set out in §§ 2 to 5 when, prior to the conclusion of a market, it considers that a serious violation of community law in public procurement was committed during a procedure within the scope of Chapter I^er this title.
§ 2. The European Commission shall notify the Belgian State of the reasons why it considers that a serious violation has been committed and requests correction by appropriate means.
§ 3. Within twenty-one calendar days after the receipt of the notification referred to in § 2, the Belgian State shall communicate to the Commission:
(a) confirmation that the violation has been corrected;
(b) reasons why no correction has been made, or
(c) a notification that the proceedings in question have been suspended, either at the initiative of the procuring authority or in the exercise of the powers provided for in Article 15.
§ 4. Reasoned conclusions communicated in accordance with § 3, (b), may, inter alia, be based on the fact that the alleged violation has already been the subject of a judicial remedy or another proceeding. In this case, the Belgian State informs the European Commission of the outcome of these procedures as soon as it is known.
§ 5. In case of notification that a procedure has been suspended in accordance with § 3, c), the Member State concerned shall notify the European Commission of the lifting of the suspension or opening of another procedure, entirely or in part, related to the previous procedure. This new notification confirms that the alleged violation has been corrected or includes reasons why no correction has been made.
§ 6. When the European Commission invokes the procedure set out in paragraphs 2 to 5, the procuring authority concerned is obliged to cooperate with the authorities responsible for communicating a response to the European Commission. In particular, the procuring authority is required to produce by the earliest channels to the Prime Minister, within ten days of receiving the notification from the European Commission, any documents and information necessary to ensure a satisfactory response.
PART III. - Motivation, information and remedies for public procurement under the Act of 13 August 2011
CHAPTER I^er. - Markets reaching European thresholds
Section 1^re. - Scope of application
Art. 35. This chapter applies to markets and qualification systems reaching the amount set by the King for European advertising under the Act of 13 August 2011.
With regard to the defence markets referred to in Article 346, 1, (b), of the Treaty on the Functioning of the European Union, only Articles 36, 37, 39 to 42, 46 to 48 and 55 to 59 are applicable.
Where the initial estimate of the market is less than the amount fixed by the King for European advertising, but the non-tax amount on the value added of the offer to be approved is, however, more than 20% higher than that amount fixed by the King, this title is applicable, except the exception provided for in section 44, 1°.
Section 2. - Reasoned decision
Art. 36. The procuring authority shall issue a reasoned decision:
1° when it decides to use a negotiated procedure without advertising;
2° when it decides to use competitive dialogue;
3° when deciding on the qualification or withdrawal of the qualification within the framework of a qualification system;
4° when deciding on the selection of candidates when the procedure includes a first phase involving the introduction of applications for participation;
5° when it decides, within the framework of a competitive dialogue, to declare the dialogue concluded;
6° when it assigns a contract, regardless of the procedure;
7° when it renounces the contracting and, if necessary, decides to launch a new market.
With respect to the decisions referred to in paragraph 1^er, 1° and 2°, 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, 3°, 4°, 5°, 6° or 7°, as applicable.
In the following cases, if the award decision referred to in paragraph 1^er, 6°, cannot be written immediately, it is written a posteriori, and no later than fifteen days after the decision:
1° in the event of an emergency resulting from a crisis in the case and under the conditions provided for in article 25, 1°, e), of the law of 13 August 2011;
2° in the event of an imperious emergency resulting from unpredictable events in the case and under the conditions provided for in section 25, 1°, (f) of the law of 13 August 2011;
3° if it is listed and purchased at a raw material exchange in the case and under the conditions provided for in section 25, 3°, (b) of the law of 13 August 2011;
4° where supplies are purchased under particularly advantageous conditions, in the case and under the conditions provided for in article 25, 3°, c), of the law of 13 August 2011;
5° for markets related to the provision of marine and air transportation services for the armed forces or security forces, which are or will be deployed abroad, in the cases and under the conditions provided for in Article 25, 5°, of the Act of 13 August 2011.
Art. 37. The reasoned decision referred to in section 36 shall, in accordance with the procedure and type of decision:
1° the name and address of the procuring authority, the object, the method of passing followed and the amount of the contract to be approved;
2° in the event of a negotiated procedure without advertising or competitive dialogue, the grounds for law and fact justifying or permitting the use of this procedure;
3° names of candidates or bidders;
4° in case of competitive dialogue, the names of the participants;
5° in case of qualification system:
- the names of qualified and unskilled candidates and the grounds of law and fact of the relevant decisions based on the criteria and rules of qualification established in advance;
- the names of candidates whose qualification is withdrawn and the grounds of law and fact of the relevant decisions based on the criteria and rules of qualification established in advance;
6° the names of the candidates or bidders not selected and selected and the reasons for law and fact of the relevant decisions;
7° in the event of a competitive dialogue, the names of the participants whose solution has or has not been chosen at the end of the dialogue and the grounds for law and decision making;
8° the names of the bidders whose offer was deemed irregular and the grounds for law and fact of their eviction. These reasons include the abnormality of prices, the non-equivalence of the solutions proposed in relation to the technical specifications or their non-satisfaction with the expected performance or functional requirements, and the decision that the requirements for information security and security of supply are not met;
9° the names of the successful bidder or of the participant(s) selected in the framework agreement and of the participants and bidders whose regular 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;
10° the grounds for law and fact for which the procuring authority may have waived the contract and, where applicable, the indication of the new award procedure followed.
Art. 38. The decision referred to in Article 37 shall be Minutes and shall be transmitted to the European Commission at its request. This report is, if any, supplemented by:
1° the indication of the share of the contract or framework agreement that the buyer intends or will be required to subcontract;
2° the justification, in the case of a procedure negotiated without an advertisement, of the five-year exceedance for contracts dealing with additional deliveries, referred to in Article 25, 3°, (a), paragraph 2, of the Act of 13 August 2011, or for the contracts consisting of the repetition of works or similar services, referred to in Article 25, 4°, (b), paragraph 2, of the same Act;
3° the justification, in the case of a procedure negotiated without advertising, of the 50 per cent exceedance of the original contract amount for the work or additional services referred to in Article 25, 4°, (a), paragraph 2, of the Act of 13 August 2011;
4° the indication of the reasons for a duration of the framework agreement exceeding seven years.
Section 3. - Information of candidates, participants and bidders
Art. 39. § 1^er. When the procedure includes a first phase involving the introduction of applications for participation, the procuring authority shall communicate to any non-selected candidate as soon as it has made the decision for selection:
1 the reasons for his non-selection, extracted from this decision;
2° in case of limitation, on the basis of a classification, of the number of candidates selected, the motivated selection decision.
The invitation to submit an offer cannot be addressed to the selected candidates prior to sending this information.
§ 2. In the event of the establishment and management of a qualification system, as soon as the awarding authority has made the decision based on the qualification, the awarding authority shall communicate to any unqualified candidate the reasons for its non-qualification, extracted from that decision. This communication takes place within the shortest time and no later than fifteen days from the date of the decision.
Prior to the withdrawal of the qualification of a contractor, supplier or service provider, the procuring authority shall notify the contractor in writing of this intention and of the reasons justifying it at least fifteen days before the date provided to terminate the qualification, as well as the possibility of making representations within that same period.
§ 3. In the event of a competitive dialogue, as soon as it has made the decision on the solution(s) that could meet its needs and requirements, the procuring authority shall communicate the reasoned decision on this choice to participants whose solution is not chosen.
Art. 40. § 1^er. As soon as the award decision is made, the procuring authority shall communicate:
1° to any unselected bidder, the reasons for his non-selection, extracted from the reasoned decision;
2° to any bidder whose offer was deemed to be irregular, the reasons for its eviction, extracted from the reasoned decision;
3° to any bidder whose offer was not chosen and to the successful bidder, the reasoned decision.
The communication referred to in paragraph 1^er also includes:
1° the precise mention of the exact duration of the period referred to in section 43, paragraph 1^er;
2° the recommendation to notify the procuring authority within that same period, by fax, e-mail or any other electronic means in the event that the applicant makes an application for suspension in accordance with section 47;
3° the mention of the fax number or the electronic address to which the warning referred to in section 43, paragraph 3, may be sent.
The procuring authority shall immediately make such communication by fax or by e-mail or any other electronic means and, on the same day, by registered mail.
§ 2. The communication referred to in § 1^er does not create any contractual undertaking with respect to the successful bidder and suspends the period in which bidders remain engaged by their offer, provided that such delay and section 43 are applicable.
For all offers introduced for this market, the suspension of this period ends:
1° failing to request a suspension referred to in section 43, paragraph 2, after the last day of the period referred to in section 43, paragraph 1^er;
2° in the event of a suspension application referred to in section 43, paragraph 2, on the day of the decision of the appeal proceeding referred to in section 47;
3° in any case not later than 45 days after the communication referred to in § 1^er.
Art. 41. As soon as it has made the decision to abandon a contract and, if necessary, to launch a new contract, the procuring authority shall communicate the reasoned decision to the candidates, participants and bidders concerned.
Art. 42. § 1^er. Without prejudice to section 12 of the Act of 13 August 2011, 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 business interests of public or private companies or could adversely affect fair competition between companies.
§ 2. The procuring authority and any person who, as a result of his or her duties or duties entrusted to him or her by the procuring authority, is aware of confidential market information or that relates to the procurement and performance of the contract, communicated by candidates, bidders, contractors, suppliers or service providers, disclose none of that information. This information includes technical or commercial secrets and confidential aspects of offers.
As long as the procuring authority has not made a decision, as the case may be, with respect to the selection or qualification of candidates or participants, the regularity of bids, the award of the contract or the renunciation of the procurement, candidates, participants, bidders and third parties have no access to the documents relating to the proceedings, including applications for participation or qualification, to bids and to internal documents.
Section 4. - Waiting time
Art. 43. The conclusion of the contract following the award decision cannot in any case take place before the expiry of a period of fifteen days from the day after the decision is sent to the candidates, participants and bidders concerned in accordance with Article 40, § 1^erParagraph 3. In the absence of simultaneousity between these shipments, the deadline for the candidate, participant or bidder concerned shall take place on the day after the last consignment.
Where an application for a suspension of the performance of the award decision referred to in section 47 is filed within the time limit referred to in paragraph 1^er, the procuring authority may not enter into the contract before the first-degree appeal proceedings, if any, decide either on the request for interim measures or on the application for suspension.
To this end, the applicant is invited to notify the procuring authority within that time limit, preferably by fax or e-mail or any other electronic means, of the introduction of such a request.
The conclusion of the contract may take place at the end of the period referred to in paragraph 1^er where no application for suspension is filed within the above-mentioned period.
The ban on the conclusion of the contract shall be granted to the sole author of a request for suspension filed within the period referred to in paragraph 1^er.
Art. 44. The conclusion of the contract may take place without applying section 43 in the following cases:
1° where prior European advertising is not mandatory;
2° where the only bidder concerned is the one to whom the contract is awarded and in the absence of interested candidates;
3° when it is a market based on a framework agreement.
Art. 45. The suspension of the execution of the award decision by the appeal proceeding shall, in full right, result in the suspension of the performance of the contract, if any, in violation of section 43.
The procuring authority shall inform the adjudicator without delay of the suspension and shall, as the case may be, order the court not to commence or stop the execution of the contract.
Where, after the suspension of the full right of the performance of the contract, no request for the cancellation of the award decision or declaration of absence of market effects is filed within the applicable time limits provided for in section 55, both the suspension of the performance of the award decision and that of the contract are lifted by the appeal proceeding.
Section 5. - Procedures for appeal
Sub-section 1^re. - Cancellation
Art. 46. At the request of any person who has or has had an interest in obtaining a specified market and who has been or may have been adversely affected by the alleged violation, the appeals body may revoke decisions made by the procuring authorities, including those with discriminatory technical, economic and financial specifications, on the grounds that such decisions constitute a diversion of power or violence:
1° Community law on public procurement applicable to the market concerned, as well as public procurement legislation;
2° the constitutional, legal or regulatory provisions and general principles of law applicable to the market concerned;
3° the market documents.
Sub-section 2. - Suspension
Art. 47. Under the same conditions as those referred to in Article 46, the appeal proceedings may, in the presence of a serious means or an apparent illegality, without proof of a risk of serious harm difficult to repair, if any under penalty of trespass, suspend the execution of the decisions referred to in Article 46 and, with respect to the Council of State, as long as it remains seized:
1° order interim measures to correct the alleged violation or to prevent the infringement of the interests concerned;
2° order the interim measures necessary for the execution of its decision.
According to the competent court of appeal in accordance with Article 56, the application for suspension and, as long as it is filed separately, the application for interim measures shall be submitted to 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.
The appeal proceeding may, on its own motion or at the request of one of the parties, take into account the likely consequences of the suspension of execution and interim measures for all interests that may be adversely affected, as well as the public interest, in particular in matters of defence and/or security, and may decide not to grant suspension of execution or interim measures where their negative consequences may prevail over their benefits.
The decision not to grant suspension of execution or interim measures shall not prejudice the other claims of the person requesting such measures.
The application for interim measures may be filed with the application for suspension referred to in paragraph 1^er or, where the suspension of the execution of the decision is ordered, with the cancellation request referred to in section 46 or separately.
Subsection 3. - Damages and interests
Art. 48. The appeal proceedings shall grant damages to persons injured by one of the violations referred to in section 46 committed by the procuring authority and prior to the conclusion of the contract, provided that the proceeding considers the damage and causal relationship between the procuring authority and the alleged violation to be established.
Sub-section 4. - Declaration of absence of effects
Art. 49. At the request of any interested person, the appeal proceedings declare that there is no effect on a contract concluded in each of the following cases:
1° subject to Article 50, where the procuring authority has entered into a market without a prior European advertisement, although this is required by Community law in public procurement or by public procurement legislation;
2° where the procuring authority has entered into the contract without respecting the period referred to in section 43, paragraph 1^er, or without waiting for the first-degree appeal, if any, to decide, either on the request for a suspension or on the request for interim measures where that violation:
(a) has deprived a bidder of the opportunity to initiate or complete the suspension appeal referred to in section 43, paragraph 2, and
(b) is accompanied by a violation of community law in public procurement or public procurement legislation and if the latter violation has compromised the chances of a bidder to obtain the market;
3° where the procuring authority has entered into the contract on the basis of a framework agreement without all conditions being fixed in this framework agreement, where there is a violation of the procedural rules determined by the King in accordance with the directive.
The procuring authority and the adjudicator are called to the cause. To this end, the procuring authority shall communicate the identity of the adjudicator as soon as it is required by the appellant.
The request for a declaration of absence of market effects may be filed with the cancellation request referred to in section 46 or separately.
Art. 50. Declaration of absence of effects referred to in section 49, paragraph 1^er, 1°, does not apply if the procuring authority, although considering that the procurement of the market without a prior European advertisement is authorized under the provisions of Community law in public procurement and public procurement legislation,
1° has previously published in the Official Journal of the European Union a notice of ex-voluntary transparency, in accordance with the model set out in the Commission's Implementing Regulation (EU) No. 842/2011 of 19 August 2011 establishing the standard forms for the publication of notices as part of the procurement of public contracts and repealing Regulation (EC) No. 1564/2005, expressing its intention to conclude the contract;
2° has not entered into the market before the expiry of a period of not less than ten days from the day after the publication of this notice in the Official Journal of the European Union.
The notice referred to in paragraph 1^er is also published in the Bulletin des Adjudications without the latter publication, however, being a condition of application of the exception to the declaration of absence of effects referred to in this section.
Publication in the Award Bulletin is optional for contracts subject to the provisions of title 3 of the Act of 13 August 2011.
The notice referred to in paragraph 1^er, 1°, contains the following information:
1° the name and contact information of the procuring authority;
2° the description of the object of the market;
3° the justification for the decision of the procuring authority to enter the market without prior European advertising;
4° the name and contact details of the bidder to which it was decided to assign the contract, and
5° where applicable, any other information deemed useful by the procuring authority.
Only the notice published in the Official Journal of the European Union and the Bulletin of Adjudications is an official publication value.
As long as the notice of voluntary ex ante transparency referred to in this article cannot be published free of charge and simultaneously in the Official Journal of the European Union and the Bulletin of Adjudications via an introduction of the data by means of electronic entry online or by transfer of data between systems allowing automated and structured publication in accordance with the models set out in the Implementing Regulations (EU) No. 842/2011 mentioned above, the publication of the said notice may be validly
1° in the Official Journal of the European Union: using the model available on the web application eNotices of the European Union for an online publication in the Official Journal of the European Union;
2° to the Bulletin des Adjudications: using the appropriate model which, for the notice of transparency ex ante voluntary, is available on the web application e-Notification of the federal authority or on another web application recognized by the Bulletin des Adjudications, for an online publication in the Bulletin des Adjudications des marchés passés en vertu de la présente loi ou de la loi du 15 juin 2006, selon le cas.
Art. 51. When it declares a market that has no effect, the appeal proceedings shall:
1° the retroactive cancellation of all contractual obligations, or
2° the limitation of the scope of the cancellation to the obligations that must still be executed.
In the case referred to in paragraph 1^er, 2°, the appeal body also makes a financial penalty referred to in section 54.
Art. 52. § 1^er. The appeal proceedings may not consider a market that has no effect, even if it has been unlawfully concluded for reasons referred to in section 49, if it finds, after having examined all relevant aspects, that compelling reasons of general interest, in the first place related to defence and security interests, require that the effects of the market be maintained.
In this case, the appeal body shall substitute the penalties referred to in section 54.
With respect to the decision not to declare a market that has no effect, the economic interest in that the market produces its effects can only be considered a compelling reason if, in exceptional circumstances, the absence of effects would have disproportionate consequences.
However, the economic interest directly linked to the market concerned is not a compelling cause of general interest. The economic interest directly linked to the market includes, among other things, the costs arising from delays 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.
In all cases, a market may not be considered to be effective if the consequences of this absence of effects can seriously threaten the very existence of a broader defence and security program that is essential to the interests of a Member State in the area of security.
§ 2. Declaration of absence of effects referred to in section 49, paragraph 1^er, 3°, does not apply if the procuring authority:
- considers that the award of the contract is in accordance with Article 138, paragraph 2, of the Royal Decree of 23 January 2012 on the procurement of public procurement and certain contracts of work, supplies and services in the areas of defence and security, and
- made voluntary application of section 43;
- has complied with the provisions of Article 40, § 1^eras soon as the award decision has been made in accordance with section 36, paragraph 1^er6°.
Art. 53. Except as provided for in sections 45 and 49 to 52, the contract, once concluded, may not be suspended or declared void of effect by the appeal proceedings, regardless of the case.
Subsection 5. - Alternative sanctions
Art. 54. § 1^er. As an alternative penalty, the appeal proceeding may, on its own or at the request of an interested person, shorten the duration of the contract or impose a financial penalty on the procuring authority.
The procuring authority and the adjudicator are called to the cause. To this end, the procuring authority shall communicate the identity of the adjudicator as soon as it is required by the appellant.
The sanction is effective, proportionate and deterrent.
Where a sanction is pronounced, the appeal proceedings may take into account all relevant factors, including the seriousness of the violation, the behaviour of the procuring authority and the extent to which the contract continues to produce effects.
The financial penalty is up to 15% of the non-tax amount on the value added of the awarded market.
The award of damages does not constitute a penalty within the meaning of this section.
§ 2. At the request of any interested person and after appreciating all relevant aspects, the appeal proceedings shall impose a substitution penalty referred to in § 1^er where the procuring authority has entered into the contract in breach of Article 43, paragraph 1^er and 2, without the violation:
1° has deprived the bidder of the possibility of introducing a suspension application referred to in section 43, paragraph 2, and
2° be accompanied by a violation of community law in public procurement or public procurement legislation, and that the latter violation may have compromised the bidder's chances of obtaining the market.
§ 3. Financial penalties imposed as substitute sanctions are paid to the Treasury.
Sub-section 6. - Time limits
Art. 55. § 1^er. Remedies are, barely irreceivable, brought within the time limits referred to in paragraphs 2 to 4, 5, paragraphs 1^er, and 6, from publication, communication or knowledge of the act, as the case may be.
§ 2. The appeal for cancellation referred to in section 46 shall be filed within sixty days.
§ 3. The application for suspension referred to in section 47 shall be filed within fifteen days. In case of application of section 50, the deadline is ten days.
§ 4. An appeal for damages referred to in section 48 shall be filed within five years.
§ 5. The appeal for declaration of absence of effects referred to in section 49 shall be filed within thirty days of the day after the day on which the procuring authority is:
1° published the notice of award of the contract in accordance with the provisions of the King's Order, when the procuring authority has decided to make this contract without prior notice to the Official Journal of the European Union and the Bulletin of Adjudications and that the notice of award of the contract contains the justification of that decision, or
2° informed the relevant candidates and bidders of the conclusion of the contract by simultaneously communicating the reasoned decision concerning them.
The period of appeal shall be six months, beginning on the day after the day on which the contract was concluded, when the procuring authority does not comply with the provisions of paragraph 1^er.
§ 6. The use of alternative sanctions referred to in article 54 shall be introduced within six months.
Sub-section 7. - Appeals bodies
Art. 56. The appeal proceeding for the appeal proceedings referred to in sections 46 and 47 is:
1° the administrative litigation section of the State Council when the procuring authority is an authority referred to in Article 14, § 1^ercoordinated laws on the State Council;
2° the judicial judge when the procuring authority is not an authority referred to in Article 14, § 1^ercoordinated laws on the State Council.
For appeal proceedings referred to in sections 48, 49 and 54, the appeal proceedings shall be the judicial judge. For the declaration of absence of effects and alternative sanctions, the judge sits as in reference.
Art. 57. Unless the provisions of this Act derogate from it, the rules of jurisdiction and procedure before the appeal are those established by the laws and decrees relating to the appeal proceedings.
When the appeal body receives a request to suspend the performance of the award decision, it shall immediately inform the procuring authority.
The appeal body shall transmit to the Prime Minister, for a communication to the European Commission, the text of all decisions it makes pursuant to section 50. It also transmits to the Prime Minister other information on the functioning of the appeals procedures that may be requested by the European Commission.
Art. 58. The appeal proceedings must guarantee an appropriate level of confidentiality and the right to respect business secrets with respect to the information, if any classified, contained in the records communicated to them by the parties to the case, including by the procuring authority that is required to file the entire case. However, the appeal body may know and consider such information. It acts in accordance with defence or security interests throughout the proceedings. It decides to what extent and in what manner it is necessary to reconcile the confidentiality and secrecy of such information with respect for the rights of the defence and to ensure that the procedure respects, as a whole, the right to a fair trial.
Art. 59. In the event of a disputed and vexatious proceeding, at the request of the procuring authority or the beneficiary of the act, the appeal proceedings may award adequate compensation to the procuring authority or the claimant's dependant beneficiary. In no case shall the total amount of any allowance exceed 5% of the value-added value-added amount of the awarded market.
The above-mentioned percentage may be increased by a royal decree deliberated in the Council of Ministers. This Royal Decree must be confirmed by law within twelve months of its entry into force.
CHAPTER 2. - Markets not reaching European thresholds
Section 1^re. - Scope of application
Art. 60. Unless otherwise provided, this chapter applies to all markets that do not amount to the amount set by the King for European advertising and fall under the Act of 13 August 2011.
For the purpose of this chapter, it is also understood by "mark", the establishment of a list of selected candidates and the establishment of a qualification system.
Section 2. - Reasoned decision, information of candidates, participants and bidders and waiting period
Art. 61. Articles 36, 37, 39, 40, § 1^erParagraph 1^er41 and 42 are applicable to the markets covered in this chapter whose amount to be approved exceeds 8.500 euros excluding value added tax.
The King may adjust the above amount according to the possible adaptation to the corresponding threshold amount for the contracts recognized by an accepted invoice.
Art. 62. 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.
Once concluded, the market may not be suspended or declared to be devoid of any effect by the appeal proceeding.
Section 3. - Procedures for appeal
Art. 63. Sections 46 to 48 apply to markets covered by this chapter.
Art. 64. When section 62, paragraph 1^er, is applicable, articles 44, 45, 49, 50, paragraphs 1^er and 4, and 51 to 54 are also applicable.
In this case, the words "European publicity" and "Official Journal of the European Union", mentioned in these provisions, are replaced by the words "Belgian publicity" and "Bulletin of Adjudications".
If the procuring authority, pursuant to section 62, paragraph 2, voluntarily applies section 43, paragraph 1^erArticles 45 and 49 to 54 are not applicable.
Art. 65. Articles 55, §§ 1^er 4, and 56 to 59 are applicable to the markets covered by this chapter. The provisions of Article 55, §§ 5 and 6, are also applicable to the markets referred to in Article 62, paragraph 1^er.
CHAPTER 3. - Correcting mechanism
Art. 66. § 1^er. The European Commission may invoke the procedure set out in §§ 2 to 5 when, prior to the conclusion of a market, it considers that a serious violation of community law in public procurement was committed during a procedure within the scope of Chapter I^er this title.
§ 2. The European Commission shall notify the Belgian State of the reasons why it considers that a serious violation has been committed and requests correction by appropriate means.
§ 3. Within twenty-one calendar days after the receipt of the notification referred to in § 2, the Belgian State shall communicate to the Commission:
(a) confirmation that the violation has been corrected;
(b) reasons why no correction has been made, or
(c) a notification that the proceedings in question have been suspended, either at the initiative of the procuring authority or in the exercise of the powers provided for in Article 47.
§ 4. Reasoned conclusions communicated in accordance with § 3, (b), may, inter alia, be based on the fact that the alleged violation has already been the subject of a judicial remedy or another proceeding. In this case, the Belgian State informs the European Commission of the outcome of these procedures as soon as it is known.
§ 5. In case of notification that a procedure has been suspended in accordance with § 3, c), the Member State concerned shall notify the European Commission of the lifting of the suspension or opening of another procedure, entirely or in part, related to the previous procedure. This new notification confirms that the alleged violation has been corrected or includes reasons why no correction has been made.
§ 6. When the European Commission invokes the procedure set out in paragraphs 2 to 5, the procuring authority concerned is obliged to cooperate with the authorities responsible for communicating a response to the European Commission. In particular, the procuring authority is required to produce by the earliest channels to the Prime Minister, within ten days of receiving the notification from the European Commission, any documents and information necessary to ensure a satisfactory response.
PART IV
UNIC CHAPTER. - Final provisions
Art. 67. The Act of 16 June 2006 on the allocation, information to candidates and bidders and the waiting period for public procurement and certain contracts of work, supplies and services, as amended by the Act of 12 January 2007, is repealed.
Art. 68. The calculation of the time limits set out in this Act shall be carried out in accordance with Council Regulation (EEC, Euratom) No. 1182/71 of 3 June 1971, establishing the rules applicable to time limits, dates and terms in Community law.
Art. 69. This Act comes into force on 1^er July 2013.
Promulgation of this law, let us order that it be clothed with the seal of the State and published by the Belgian Monitor.
Given in Brussels on 17 June 2013.
ALBERT
By the King:
The Prime Minister,
E. DI RUPO
The Minister of the Interior,
Ms. J. MILQUET
The Minister of Justice,
Ms. A. TURTELBOOM
Seal of the state seal:
The Minister of Justice,
Ms. A. TURTELBOOM
____
Note
(1) Documents of the House of Representatives:
53-2752 -2012/2013:
No. 001: Bill.
No. 002: Amendments.
Number 003: Report.
No. 004: Text adopted by the commission.
No. 005: Amendment.
No. 006: Text adopted in plenary and transmitted to the Senate.
Full report: 29 and 30 May 2013.
Documents of the Senate:
5-2128 - 2012/2013:
No. 1: Project transmitted by the House of Representatives.
Number two: Report.
No. 3: Text adopted in plenary and subject to Royal Assent.
Annales of the Senate: June 13, 2013.