Law On Motivation, Information And Remedies In Public Procurement And Some Markets Works, Supplies And Services (1)

Original Language Title: Loi relative à la motivation, à l'information et aux voies de recours en matière de marchés publics et de certains marchés de travaux, de fournitures et de services (1)

Read the untranslated law here: http://www.ejustice.just.fgov.be/cgi/article_body.pl?numac=2013203640&caller=list&article_lang=F&row_id=1200&numero=1243&pub_date=2013-06-21&dt=LOI&language=fr&fr=f&choix1=ET&choix2=ET&fromtab=+moftxt&trier=publication&sql=dt+=+'LOI'&tri=pd+AS+RANK+

Posted the: 2013-06-21 Numac: 2013203640 FEDERAL CHANCELLERY of the Prime Minister PUBLIC SERVICE June 17, 2013. -Law on motivation, information and remedies in public procurement and certain contracts for works, supplies and services (1) ALBERT II, King of the Belgians, to all, present and to come, hi.
The Chambers have adopted and we endorse the following: title I:. -General provisions and definitions Article 1. This Act regulates a matter referred to in article 77 of the Constitution.
It transposes: 1 ° Directive 89/665 / EEC of 21 December 1989 coordination of laws, regulations and administrative action relating to the application of the procedures concerning the award of public contracts for supplies and works, as amended by Directive 2007/66/EC;
2 ° Directive 92/13 / EEC of 25 February 1992 on the coordination of laws, regulations and administrative action relating to the application of Community rules on the procedures for procurement of entities operating in the sectors of water, energy, transport and telecommunications, 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 on the coordination of procedures for the award of contracts in the sectors of water, energy, transport and postal services;
(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 award of public contracts for 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 award of certain works contracts, supplies and services by contracting authorities or contracting entities in the fields of defence and security, and amending Directives 2004/17/EC and 2004/18/EC.
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2. for the purposes of this Act, means: 1 ° market: the public contract or the contract works, supplies or services, the framework agreement, the competition of projects and the concession of public works within the meaning of the law of June 15, 2006 or August 13, 2011 Act, as the case may be;
2 ° contracting authority: the contracting authority, the public enterprise or the contracting entity within the meaning of the law of June 15, 2006 or August 13, 2011 Act, as the case may be;
3 ° candidate concerned: according to the definitions of this Act and the law of June 15, 2006 or the law of August 13, 2011, as applicable, the candidate to whom authority contracting at a market, has not notified the reasons for his selection before the award decision is notified to the tenderers concerned.
4 concerned participating °: according to the definitions of this Act and the law of June 15, 2006 or August 13, 2011 Act, as the case may be,-in the case of dynamic purchasing system: the participant to which the awarding authority did not release the reasons for its non selection or refusal of its indicative offer before the award decision has been notified to the tenderers concerned.
-in the case of a competitive dialogue: the participant to which the awarding authority did not release the reasons for which its solution was not chosen until the award decision has been notified to the tenderers concerned.
5 ° tenderer concerned: not definitively excluded bidder from participation in the proceedings by a reasoned decision which has been notified and is most likely an action before the Court of appeal or was considered lawful by the instance of appeal;
6 ° Court of appeal: the competent court under article 24 or article 56;
7 ° the law of June 15, 2006: Act of 15 June 2006 on public procurement and certain contracts for works, supplies and services;
8 ° the law of August 13, 2011: August 13, 2011 Act relating to public procurement and certain contracts for works, supplies and services in the fields of defence and security;
9 ° the classical sectors: sectors covered by the provisions of titles I and II of the Act of June 15, 2006;
10 ° the special sectors: sectors covered by the provisions of titles I, III and IV of the Act of June 15, 2006.
TITLE II. -Motivation, information and remedies in public procurement under the Act of June 15, 2006 Chapter 1.
-Markets reaching European thresholds Section 1st. -Scope art.
3. This chapter shall apply to markets, qualification systems and dynamic purchasing systems that fall under the Act of June 15, 2006 and reach the amount fixed by the King for the European advertising.
Section 2. -Reasoned decision art. 4. the contracting authority shall prepare a reasoned decision: 1 ° when she decides to have recourse to the negotiated procedure without advertising;
2 ° when it decides to use a negotiated procedure with advertising in the classical sectors;
3 ° when it decides to make use of a competitive dialogue;
4 ° when it decides the qualification or the withdrawal of the qualification in the context of a system of qualification;
5 ° when deciding the selection of the candidates when the procedure involves an initial phase involving the introduction of applications for participation;
6 ° when it decides, in the context of a competitive dialogue, to declare the dialogue concluded;
7 ° when it decides, in the context of a dynamic purchasing system, do not select a participant or dismiss a participant whose indicative offer is not consistent with the contract documents;
8 ° when it awarded a contract, regardless of the procedure;
9 ° when it renounces the award of the contract and, where appropriate, decides to launch a new market.
In regard to the decisions referred to in paragraph 1, 1 ° to 3 °, the reasons for the decision must exist at the time it is taken but formal reasoned decision can however be written retrospectively, in the preparation of the next decision referred to in paragraph 1, 4 °, 5 °, 6 °, 8 ° or 9 °, depending on the case.
In the following cases, if the decision to award referred to in paragraph 1, 8 °, can be drawn up immediately, it is written retrospectively, and at the latest within fifteen days following the decision: 1 ° in case of urgency in the cases and under the conditions laid down in article 26, § 1, 1 °, c), of the Act of June 15, 2006;
2 ° if it supplies quoted and purchased on a stock exchange of raw materials in the cases and under the conditions laid down in article 26, § 1, 3 °, d), of the Act of June 15, 2006;
3 ° when supplies purchased on particularly advantageous terms, in the cases and under the conditions laid down in article 26, § 1, 3 °, e), of the Act of June 15, 2006.
S. 5. the reasoned decision referred to in article 4 has, according to the procedure and the type of decision: 1 ° the name and address of the contracting authority, the subject and the amount of the market to approve;
2 ° in case of negotiated procedure or competitive dialogue, the grounds of law and of fact justifying or allowing the use of this procedure;
3 ° the names of the candidates or tenderers.
4 ° in the case of competitive dialogue or system of dynamic acquisition, the names of the participants;
5 ° in the case of qualification system:-qualified and non-qualified candidates names and reasons of law and of fact decisions y related, based on the criteria and rules for qualification established in advance;
-the names of the candidates which qualification is removed and the grounds of law and of fact decisions y related, based on the criteria and rules for qualification established in advance;
(6) the names of the candidates or tenderers not selected and selected and the reasons of law and of fact decisions y;
7 ° - in the case of a competitive dialogue, the names of the participants whose solution has or has not retained at the end of the dialogue and the grounds of law and of fact decisions y;
-in the case of dynamic purchasing system, names of selected and selected participants and participants with the indicative offer was rejected because it is not consistent with the contract documents, and the grounds of law and of fact decisions y;
8 ° the names of the tenderers whose offer was considered to be irregular and the grounds of law and of fact their eviction. These reasons are particularly related to the abnormality of the price and, if applicable to the recognition of equivalence of the proposed solutions to the technical specifications or to their satisfactory relative to the performance or functional requirements;
9 ° the names of the bidder or the participants identified in the framework agreement and participants and bidders whose regular supply has not been chosen and the reasons of law and of fact decisions y related thereto, including the characteristics and relative advantages of the tender selected;
10 ° the grounds of law and fact for which the awarding authority eventually gave up to go the market and, where appropriate, the indication of the new followed by tendering procedure.
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6. the decision referred to in article 5 is minutes and passed at his request to the European Commission. In the classical sectors, this record is supplemented by an indication of the share of the market which will be outsourced, if it is known.
Section 3. -Information of applicants, participants and bidders

S. 7 § 1. When the procedure involves an initial phase involving the introduction of applications for participation, as soon as she took the reasoned decision of selection, the awarding authority shall communicate to any candidate not selected: 1 ° the reasons for its selection, extracts from this decision;
2 ° in case of limitation, on the basis of a ranking, the number of candidates selected, the reasoned selection decision.
The invitation to submit a tender may be addressed to the candidates prior to the submission of this information.

§ 2. In the case of establishment and management of a system of qualification, as soon as she took the reasoned decision of qualification, the awarding authority shall communicate to any candidate unqualified, the reasons for its non-qualification, extracts from this decision. This communication takes place promptly and no later than within fifteen days from the date of the decision.
Prior to the removal of the qualification of a contractor, supplier or service provider, the contracting authority shall inform it in writing of this intention and reasons the justifying at least fifteen days before the scheduled end to the qualification, as well as the opportunity to share its observations within the same period.
§ 3. In the case of a competitive dialogue, as soon as she took the decision on the solutions that could meet its needs and its requirements, the awarding authority communicates the reasoned decision on this choice to participants whose solution is not retained.
§ 4. In the case of dynamic purchasing system, as soon as she took the decision motivated, the awarding authority forward: 1 ° to any participant not selected, the reasons for its selection, extracts the decision motivated;
2 ° to any participant rejected, the reasons for the rejection of its indicative tender, extracted from the reasoned decision.
S. 8 § 1. As soon as she took the decision to reasoned award, the awarding authority shall: 1 ° to any bidder not selected, the reasons for its selection, extracts the decision motivated;
2 ° to any bidder whose offer was considered to be irregular, the reasons for his ouster, extracts the decision motivated;
3 ° any bidder whose offer was not chosen and the successful bidder, the reasoned decision.
The communication includes, as appropriate: 1 ° the specific mention of the exact duration of the period referred to in article 11, paragraph 1;
2 ° the recommendation to notify the procuring authority within the same period, by facsimile, by electronic mail or by any other electronic means in the case where the person concerned applied for suspension in accordance with article 15;
3 ° the reference to the fax number or e-mail address to which the warning referred to in article 11, paragraph 3, can be sent.
The awarding authority immediately performs this communication by fax or by electronic mail or any other electronic means and, on the same day by registered mail.
§ 2. The information referred to in the § 1 does not create any contractual commitment to the successful bidder and suspends the period during which the tenderers shall remain bound by their tenders, provided that such a delay and article 11 shall apply.
For all of the introduced offerings for this market, the suspension of that period ends: 1 ° the absence request of suspension referred to in article 11, paragraph 2, at the end of the last day of the period referred to in article 11, paragraph 1;
2 ° in case of request of suspension referred to in article 11, paragraph 2, on the day of the decision of the Court of appeal referred to in article 15;
3 ° in any case no later than 45 days after the information referred to in the § 1.
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9. as soon as she took the decision to renounce the contract and, where appropriate, to launch a new market, the awarding authority shall communicate the decision motivated applicants, participants and bidders concerned.
S. 10 § 1. Some information may not be disclosed when their disclosure would interfere with the application of a law, would be contrary to the public interest, would prejudice the legitimate commercial interests of public or private undertakings or could harm fair competition between companies.
§ 2. The authority awarding and any person who, due to their duties or missions that have been entrusted to it by the Commission, has knowledge of confidential information relating to a contract or that relate to procurement and the performance of the contract, provided by applicants, tenderers, contractors, suppliers or service providers, shall disclose any of this information. The information relates to particular technical or business secrets and the confidential aspects of tenders.
Also that the awarding authority took no decision, as the case may be, on the selection or qualification of applicants or participants of the regularity of tenders, the allocation of market or the waiver of the award of the contract, applicants, participants, applicants and third parties have no access to the documents relating to the procedure including applications for participation or qualification, offers and internal documents of the awarding authority.
Section 4. -Timeout article 11. the conclusion of the market following the decision to award cannot under any circumstances take place before the expiry of a period of 15 days from the next day of the day where the reasoned decision is sent to the candidates, participants and tenderers concerned in accordance with article 8, § 1, paragraph 3. Absence of simultaneity between these shipments, the period shall courses, for the applicant, participant or tenderer concerned, the day of the last shipment.
When an application for suspension of the execution of the decision of award as referred to in article 15 is made within the time limit referred to in paragraph 1, the contracting authority may enter into the contract before the review body, the appropriate first degree, statue is on the application of provisional measures, either at the request of suspension.
To this end, the applicant is invited to notify the procuring authority within that period, preferably by fax or electronic 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 when no request for suspension is introduced in that period.
The prohibition to proceed with the conclusion of the contract is the only applicant for a suspension introduced within the time limit referred to in paragraph 1.
S. 12. the conclusion of the contract can take place without applying article 11 in the following cases: 1 ° where a prior European advertising is not mandatory;
2 ° If the only tenderer concerned is one in which the contract is awarded and the absence of relevant candidates.
3 ° when it is a contract based on a framework agreement.
S. 13. the suspension of the execution of the award by the Court of appeal decision causes of right the suspension of execution of the market eventually concluded in violation of article 11.
The awarding authority informs the purchaser without delay of the suspension and ordered him, as the case may be, do not start or stop the execution of the contract.
When after the suspension of right to the performance of the contract, no application for annulment of the decision to award or declaration of absence of effects of the market is submitted within the time limits provided for in article 23, both the suspension of execution of the decision to award the market are thrown by the review body.
Section 5. -Appeal procedures subsection 1.
-Cancellation art. 14. at the request of any person having or having had an interest in obtaining a particular contract and who has been or risks being harmed by the alleged infringement, the Court of appeal may annul the decisions taken by the awarding entities, including those on technical, economic and financial specifications discriminatory, on the ground that these decisions are a misuse of power or violent : 1 ° Community law on public contracts applicable to the market concerned, as well as the legislation on public procurement;
2 ° the provisions constitutional, legal or regulatory and general principles of law applicable to the relevant market;
3 ° the contract documents.
Sub-section 2. -Suspension article
15. under the same conditions as those referred to in article 14, the Appeals Board may, in the presence of a serious or an apparent illegality means without that proof of a risk of difficult to repair serious harm should be made, where appropriate on pain of penalty, suspend the execution of the decisions referred to in article 14 and, in relation to the Council of State, as long as it remains seized of an action for annulment : 1 ° order interim measures with the aim of correcting the alleged infringement or prevent that prejudice to the interests concerned;
2 ° order provisional measures necessary for the implementation of its decision.
According to the competent review body in accordance with article 24, application for a stay as well as, provided that it be introduced separately, the application for interim measures is introduced, before the Council of State, exclusively the procedure of extreme urgency and before the judicial judge, exclusively according to the proceedings for interim relief.
The Appeals Board may, ex officio or at the request of one of the parties, take into account

the probable consequences of the suspension of execution and of interim measures for all interests likely to be harmed, as well as the public interest, and may decide not to grant the suspension of execution or provisional measures where their negative consequences could outweigh their benefits.
The decision not to grant suspension of execution or provisional measures does not prejudice the other claim of the person seeking such measures.
The request for provisional measures can be introduced with the application of target suspension a 1 paragraph or, where the suspension of the execution of the decision is ordered, with the request for cancellation referred to in article 14 or separately.
Sub-section 3. - Damages art. 16. the Court of appeal grants damages to persons injured by one of the violations referred to in article 14 by the awarding authority and before the conclusion of the contract, provided that such proceeding considers as established both the damage that the causal link between it and the alleged violation.

However, for contracts in the special sectors, when a person applied for damages in respect of the costs incurred for the preparation of an offer or participation in the procedure, it is only required to prove that there is violation of Community law on public contracts or procurement legislation and that she had a real win chance the market chance that as a result of this violation, has been compromised.
Subsection 4. -Declaration of absence of effects s. 17. at the request of any interested person, the Court of appeal says devoid of effects a contract in each of the following cases: 1 ° subject to article 18, when the awarding authority has signed a contract without a prior European advertising, while this is yet required by Community law on public contracts or by the law on public procurement;
2 ° when the awarding authority concluded the market without complying with the time limit referred to in article 11, paragraph 1, or wait until the instance use appropriate first degree, statue or on the request of suspension, on the request for provisional measures when this violation: a) has deprived a bidder of the possibility to initiate or complete the suspension action referred to in article 11 (, paragraph 2, and b) is accompanied by a breach of Community law on public contracts or procurement legislation and whether this latest violation has compromised the chances of a bidder to get the market, 3 ° when the awarding authority has concluded the contract on the basis of a framework agreement unless all conditions are laid down in the framework agreement When there are violations of the procedural rules determined by the King.
The awarding authority and the successful tenderer are called to the cause. To this end, the awarding authority shall communicate the identity of the winning bidder as soon as it is required by the applicant.
Declaration of absence of effects of the market applications may be submitted with the request for cancellation referred to in article 14 or separately.
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18. the declaration of absence of effects referred to in article 17, paragraph 1, 1 °, does not apply if the awarding authority, although believing that the procurement without a European advertising prior authorized under the provisions of Community law on public procurement and the legislation on public procurement, 1 ° issued prior to the Official Journal of the Union European voluntary Exante transparency notice in accordance with the model laid down by the King, expressing his intention to enter into the market, and 2 ° has not concluded market before the expiration of a period of at least ten days from the day following the day of publication of this notice in the Official Journal of the European Union.
Notice referred to in paragraph 1 is also published in the Bulletin of tenders without that this last publication does however constitute a condition for the application of the exception to the declaration of absence of effects referred to in article.
The publication in the Bulletin of auctions is optional for contracts in special sectors.
The notice referred to in paragraph 1 contains the following information: 1 ° the name and contact details of the authority awarding;
2 ° the description of the subject of the contract;
3 ° the justification of the decision of the awarding authority to award the contract without prior European advertising;
4 ° the name and coordinates of the bidder to which it was decided to award the contract, and 5 ° where appropriate, any other information deemed useful by the contracting authority.
Only the notice published in the Official Journal of the European Union and the Bulletin of tenders has value of official publication.
S. 19. when it says a market devoid of effects, the Court of appeal pronounces: 1 ° the retroactive cancellation of all contractual obligations, or 2 ° limitation of the scope of the cancellation to the obligations that still need to be performed.
In the case referred to in paragraph 1, 2 °, the Court of appeal also addressed a financial penalty referred to in article 22.
S. 20. the review body has the Faculty of not considering a market devoid of effects, even if found illegally on grounds referred to in article 17, if it finds, after having examined all relevant aspects, that overriding general interest require that the effects of market are maintained.
In this case, the Court of Appeal pronounced as a substitution of the penalties referred to in article 22.
With respect to the decision not to declare a market devoid of effects, the economic interest in the market to produce its effects cannot be regarded as an overriding reason in the case where, in exceptional circumstances, the absence of effects would have a disproportionate impact.
However, economic interests directly linked to the relevant market is not a compelling reason of general interest.
The economic interests directly linked to the market include costs arising from a delay in the execution of the contract, the launch of a new procedure, change of economic operators for the realization of the contract and legal obligations resulting from the absence of effects.
S. 21. except in the cases provided for in articles 13 and 17 to 20, the market, once completed, may be suspended or declared devoid of effects by the review body, whatever it is.
Subsection 5.
-Alternative article sanctions 22 § 1. As alternative punishment, the Court of appeal may, ex officio or at the request of an interested person, shorten the term of the contract, or impose a financial penalty to the awarding authority.
The awarding authority and the successful tenderer are called to the cause. To this end, the awarding authority shall communicate the identity of the winning bidder as soon as it is required by the applicant.
The pronounced penalty is effective, proportionate and dissuasive.
When she delivers a penalty, the Appeals Board may take into account all relevant factors, including the seriousness of the infringement, the behaviour of the awarding authority and the extent to which contract continues to produce effects.
The financial penalty amounts up to 15% of the amount excluding tax on the added value of the contract awarded.
The granting of damages does not constitute a sanction within the meaning of this article.
§ 2. At the request of any person interested and after having assessed all relevant aspects, the Court of Appeal pronounced a sanction of target substitution in the § 1 when the awarding authority has entered into the market in disregard of article 11, paragraphs 1 and 2, without however than this breach: 1 ° has private bidder of the possibility of introducing an application for suspension referred to in article 11 , paragraph 2, and 2 ° is accompanied by a breach of Community law on public contracts or procurement legislation, and that this latest violation could jeopardize the chances of the tenderer to obtain the market.
§ 3. The financial penalties pronounced as alternative sanctions are paid to the Treasury.
Sub-section 6. -Time art.
23 § 1. The remedies are, on penalty of inadmissibility, introduced within the time limits referred to in §§ 2 to 4, 5, paragraph 1, and 6 from the publication, communication or gain knowledge of the Act, as the case may be.
§ 2. Action for annulment under article 14 is introduced within a period of sixty days.
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3. The demand for suspension referred to in article 15 is introduced within a period of fifteen days. In case of application of article 18, the deadline is 10 days.
§ 4. Action for damages referred to in article 16 is brought within a period of five years.
§ 5. The action for declaration of absence of effects referred to in article 17 is brought within a period of 30 days from the day following the day where the awarding authority, either: 1 ° has published the notice of award of the contract in accordance with the provisions laid down by the King, when the awarding authority decided to move this market without prior advertisement of a notice in the Official Journal of the European Union and in the Bulletin of the invitations to tender and that the notice of award of the contract contains the justification for this decision , or 2 ° informed the candidates and tenderers concerned of the conclusion of the contract at the same time giving the reasoned decision concerning them.

The appeal period is set at six months from the day following the day of the conclusion of the contract, when the awarding authority fails to comply with the provisions of paragraph 1.
§ 6. The application on substitution penalties referred to in article 22 is lodged within a period of six months.
Sub-section 7. -Instances of appeal art. 24. the Court of appeal for the review procedures referred to in articles 14 and 15 is: 1 ° the section of the administrative litigation of the Council of State when the awarding authority is an authority referred to in article 14, § 1, of coordinated laws on the Council of State;
2 ° the judge judicial when the awarding authority is not an authority referred to in article 14, § 1, of coordinated laws on the Council of State.
For procedures of recourse referred to in articles 16, 17 and 22, the Court of appeal is the judicial judge. For the declaration of absence of effects and alternative sanctions, judge sitting as in interim relief.
S. 25. unless provisions of this Act do derogate, the rules of jurisdiction and procedure before the Court of appeal are those laid down in the laws and orders relating to the Court of appeal.
When the review body receives a request for suspension of the execution of the award decision, it shall immediately inform the awarding authority.
The review body shall transmit to the Prime Minister, to a communication to the European Commission, the text of all decisions which it takes pursuant to article 18. It also transmits to the premier the other information on the functioning of the appeals procedures possibly requested by the European Commission.
S. 26. the review body must ensure the confidentiality and the right to respect for trade secrets with regard to the information contained in the records which are communicated to it by the parties to the cause, including by the awarding authority who is required to file the entire folder, while being able to know such information and take them into account. It belongs to this instance to decide to what extent and in what manner it should be guarantee confidentiality and the secrecy of such information, with a view to the requirements of effective legal protection and respect for the rights of defence of the parties to the dispute so that the procedure meets, as a whole, the right to a fair trial.
S. 27. in the case of use of reckless and vexatious, at the request of the contracting authority or the beneficiary of the Act, the Appeals Board may grant adequate compensation to the awarding authority or to the beneficiary to charge of the applicant. The total amount of any allowances cannot exceed 5% of the amount excluding tax on the added value of the contract awarded.
The above percentage may be increased by a royal decree deliberated in the Council of Ministers. This royal decree shall be confirmed by the law within a period of twelve months from its entry into force.
CHAPTER 2. -Markets not reaching European thresholds Section 1st. -Scope art.
28. This chapter applies to not reaching the amount fixed by the King for the European advertising and markets under the Act of June 15, 2006.
For the purposes of this chapter, also means 'market', the establishment of a list of candidates and the establishment of a system of qualification.
Section 2. -Reasoned decision, information of applicants, participants and bidders and timeout article 29 § 1. For contracts with the expenditure to approve excluding value added tax exceeding 85,000 euros in the classical sectors, and 170,000 euros in the special sectors, only items 4, 5, 7, 8, § 1, paragraph 1, 9 and 10 shall apply.
The King may adapt the aforementioned amounts to the amounts of the thresholds for the use of the negotiated procedure without advertising.

§ 2. For contracts with the expenditure to approve excluding value added tax does not exceed the thresholds referred to the § 1, the contracting authority shall prepare a decision with reasons in the following cases: 1 ° when deciding the selection of the candidates when the procedure involves an initial phase involving the introduction of applications for participation;
2 ° when it awarded a contract, regardless of the procedure;
3 ° when it renounces the award of the contract and, where appropriate, decides to launch a new market.
In addition, the awarding authority shall inform in writing: 1 ° any candidate not selected by his selection, when the tendering procedure includes an initial phase involving the introduction of applications for participation and as soon as she took the reasoned decision of selection;
2 ° any candidate or tenderer not selected its selection, any bidder whose offer was rejected or has not been chosen, the rejection of his offers or that it has not been chosen, and the successful bidder, its choice and this decision as soon as it has taken the decision to award.
Within a period of thirty days from the date of dispatch of the information referred to in paragraph 2, the candidate or tenderer concerned can apply in writing to the contracting authority to provide the following additional information: 1 ° any candidate or tenderer not selected: the reasons for its selection, extracts the decision motivated;
2 ° any bidder whose offer was rejected: the reasons for the rejection, extracts the decision motivated;
3 ° any bidder whose offer has not been accepted and the contract Awardee: the reasoned decision.
The awarding authority should communicate in writing additional information within a period of fifteen days from the date of receipt of the application.
However, the awarding authority may use the terms of article 8, § 1, paragraph 1, and joining information, as the case may be, the reasons given in paragraph 3. The reasoned decision is attached to information when the awarding authority makes it applicable to article 11, paragraph 1, in accordance with article 30, paragraph 2.

§ 3. For the contracts referred to in § 2, paragraph 1, the authority adjudicating, as soon as she took the decision to cancel the award of the contract and, where appropriate, to launch a new market, shall inform in writing each candidate or tenderer concerned.
Within a period of thirty days from the date of submission of this information, the candidate or tenderer concerned can apply in writing to the contracting authority to provide reasoned decision.
The awarding authority should communicate in writing the decision with reasons within a period of fifteen days from the date of receipt of the application.
§ 4. When the awarding authority, for contracts referred to in § 2, paragraph 1, decides the qualification or of the withdrawal of the qualification in the context of a system of qualification, she writes a reasoned decision. As soon as this decision was made, the awarding authority shall inform each applicant concerned of this qualification or the withdrawal.
Within a period of thirty days from the date of submission of this information, the candidate may apply in writing to the contracting authority to communicate the reasons for this decision, excerpts from the reasoned decision.
The awarding authority should communicate in writing the extract from the decision with reasons within a period of fifteen days from the date of receipt of the application.
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5. When the awarding authority, for contracts referred to in § 2, paragraph 1, decides to make use of a competitive dialogue, she writes a reasoned decision.
On the other hand, a reasoned decision is written, for the contracts referred to in § 2, paragraph 1, when the awarding authority takes in the competitive dialogue, a decision on the solutions that could meet its needs and requirements. As soon as this decision was made, the awarding authority shall inform each participant concerned. Within a period of thirty days from the date of submission of this information, the participant concerned may request in writing to the contracting authority to provide reasoned decision. The awarding authority should communicate in writing the decision with reasons within a period of fifteen days from the date of receipt of the application.
When the awarding authority decides, for the contracts referred to in § 2, paragraph 1, in the context of the competitive dialogue procedure, declare concluded dialogue, she also writes a reasoned decision.
As soon as this decision was made, the awarding authority shall inform each participant concerned. In the same manner as those referred to in the preceding paragraph, the participant concerned can then apply in writing to the awarding authority to provide reasoned decision.
§ 6. When the awarding authority decides, for the contracts referred to in § 2, paragraph 1, in the context of the dynamic purchasing system, do not select a participant or dismiss its indicative offer, she writes a reasoned decision. As soon as this decision was made, the awarding authority shall inform each participant concerned. Within a period of thirty days from the date of submission of this information, the participant concerned may request in writing to the contracting authority to communicate the reasons for this decision, excerpts from the reasoned decision.
The awarding authority should communicate in writing the extract from the decision with reasons within a period of fifteen days from the date of receipt of the application.
§ 7. §§ 2 to 6 do not apply to contracts evidenced by an accepted invoice.
S. 30. article 11 is applicable to subject works contracts

mandatory advertising at the Belgian level including the amount of the offer to approve excluding value added tax exceeds half of the amount fixed by the King for the European advertising.
The awarding authority may make article 11, paragraph 1, applicable to the contracts referred to in this chapter and which are not referred to in section 1.
Once completed, the market may be suspended or declared devoid of effects by the review body, whatever it is.
Section 3. -Appeal procedures art. 31. articles 14 to 16 shall apply to contracts referred to in this chapter.
S. 32. when article 30, paragraph 1, is applicable, sections 12, 13, 17, 18, paragraphs 1 and 4, and 19 to 22 are also applicable.
In this case, 'European advertising' and 'Official Journal of the European Union', mentioned in these provisions, shall be replaced by the words "Belgian advertising" and "Bulletin of the auctions".
If the awarding authority, in accordance with article 30, paragraph 2, made voluntary application of article 11, paragraph 1, articles 13 and 17 to 22 are not applicable.
S. 33. articles 23, §§ 1 to 4 and 24 to 27, shall apply to contracts referred to in this chapter. The provisions of article 23, §§ 5 and 6, are also applicable to the contracts referred to in article 30, paragraph 1.
CHAPTER 3. -Mechanism corrector art.
34 § 1. The Commission European may invoke the procedure provided for in §§ 2 to 5 when, prior to the conclusion of a contract, it considers that a serious infringement of Community public procurement law has been committed during a procedure falling within the scope of application of chapter I of this title.
§ 2. The European Commission shall notify the Belgian State the reasons why it considers that a serious infringement has been committed and request correction by appropriate means.
§ 3. In the twenty-one calendar days following the receipt of the notification referred to in § 2, the Belgian State shall inform the Commission: has) confirmation that the infringement has been corrected;
(b) conclusions motivated explaining why no correction was made, or c) a notification stating that the procedure in question has been suspended, or has the initiative of the awarding authority, or in the exercise of the powers provided for in article 15.
§ 4. Conclusions motivated communicated in accordance with § 3, b), may rely among other matters on the fact that the alleged infringement is already the subject of judicial or another instance. In this case, the Belgian State shall inform the Commission of the outcome of these proceedings as soon as it is known.

§ 5. In the case of notification indicating that a procedure has been suspended in accordance with § 3, c), the Member State concerned shall notify to the European Commission the lifting of the suspension or the opening of other related proceedings, wholly or partially, the previous procedure. This new notification confirms that the alleged infringement has been corrected or include conclusions motivated explaining why no correction was made.
§ 6. When the European Commission invokes the procedure provided for in §§ 2-5, the concerned awarding authority is obliged to cooperate with the authorities responsible to communicate a response to the European Commission. The awarding authority is particularly required to produce the fastest routes to the Prime Minister, within ten days of the receipt of the notification of the European Commission, all documents and information required to provide a satisfactory response.
TITLE III. -Motivation, information and remedies in public procurement under the Act of August 13, 2011, chapter I.
-Markets reaching European thresholds Section 1st. -Scope art.
35. This chapter applies to the markets and qualification systems up to the amount fixed by the King for the European advertising and under the Act of August 13, 2011.
In respect to contracts referred to in article 346, 1 defence, b), of the Treaty on the functioning of the European Union, only articles 36, 37, 39-42, 46-48 and 55 to 59 are however applicable.
When the initial estimate of the market is less than the amount fixed by the King for the European advertising, but the amount excluding tax on the added value of the offer to be approved however is higher by more than 20% to the amount fixed by the King, this title is applicable, except as provided in article 44, 1 °.
Section 2. -Reasoned decision art. 36. the contracting authority shall prepare a reasoned decision: 1 ° when she decides to have recourse to the negotiated procedure without advertising;
2 ° when it decides to make use of a competitive dialogue;
3 ° when it decides the qualification or the withdrawal of the qualification in the context of a system of qualification;
4 ° when deciding the selection of the candidates when the procedure involves an initial phase involving the introduction of applications for participation;
5 ° when it decides, in the context of a competitive dialogue, to declare the dialogue concluded;
6 ° when it awarded a contract, regardless of the procedure;
7 ° when it renounces the award of the contract and, where appropriate, decides to launch a new market.
With regard to the decisions referred to in paragraph 1, 1 ° and 2 °, the grounds for the decision must exist at the time when the application is taken, but the formal reasoned decision can however be written retrospectively, in the preparation of the next decision referred to in paragraph 1, 3 °, 4 °, 5 °, 6 ° or 7 °, depending on the case.
In the following cases, if the decision to award referred to in paragraph 1, 6 °, can be drawn up immediately, it is written retrospectively, and at the latest within fifteen days following the decision: 1 ° in case of emergency resulting from a crisis in the cases and under the conditions provided for in article 25, 1 °, e), of the Act of August 13, 2011;
2 ° in case of extreme urgency resulting from unforeseeable events in the cases and under the conditions provided for in article 25, 1 °, f), of the Act of August 13, 2011;
3 ° if it supplies quoted and purchased on a stock exchange of raw materials in the cases and under the conditions provided for in article 25, 3 °, b), of the Act of August 13, 2011;
4 ° when supplies purchased on particularly advantageous terms, in the cases and under the conditions provided for in article 25, 3 °, c), of the Act of August 13, 2011;
5 ° for contracts related to the provision of services of maritime and air transport for the armed forces or security forces, who are or will be deployed abroad, in cases and under the conditions provided for in article 25, 5 °, of the law of August 13, 2011.
S. 37. the reasoned decision referred to in article 36 includes, according to the procedure and the type of decision: 1 ° the name and address of the contracting authority, the object, the procurement mode followed and the amount of the market to approve;
2 ° in case of negotiated procedure without advertising or competitive dialogue, the reasons of law and of fact justifying or allowing the use of this procedure;
3 ° the names of the candidates or tenderers.
(4) in the case of a competitive dialogue, the names of the participants;
5 ° in the case of qualification system:-qualified and non-qualified candidates names and reasons of law and of fact decisions y related, based on the criteria and rules for qualification established in advance;
-the names of the candidates which qualification is removed and the grounds of law and of fact decisions y related, based on the criteria and rules for qualification established in advance;
(6) the names of the candidates or tenderers not selected and selected and the reasons of law and of fact decisions y;
7 ° in the case of a competitive dialogue, the names of the participants whose solution has or has not retained at the end of the dialogue and the grounds of law and of fact decisions y;
8 ° the names of the tenderers whose offer was considered to be irregular and the grounds of law and of fact their eviction. These reasons are particularly related to the abnormal character of prices, to the finding of non-equivalence of solutions relative to technical specifications or their deceit against performance or functional requirements, as well as to the decision that the security of the information and the security of supply requirements are not met;
9 ° the names of the bidder or the participants identified in the framework agreement and participants and bidders whose regular supply has not been chosen and the reasons of law and of fact decisions y related thereto, including the characteristics and relative advantages of the tender selected;
10 ° the grounds of law and fact for which the awarding authority eventually gave up to go the market and, where appropriate, the indication of the new followed by tendering procedure.
S. 38. the decision referred to in article 37 is minutes and passed at his request to the European Commission. These minutes shall as appropriate, be supplemented by: 1 ° the indication on the part of the contract or of the framework agreement that the successful tenderer intends to or liable to outsource;
2 ° the justification, in the case of a negotiated procedure without advertising, exceeding the duration of five years for contracts for deliveries further, referred to in article 25, 3 °, a), paragraph 2, of the Act of August 13, 2011, or for contracts consisting in the repetition of work or services similar, referred to in article 25, 4 ° (b), paragraph 2, of the Act;

3 ° the justification, in the case of a negotiated procedure without advertising, of the overshoot of the ceiling of 50% of the amount of the original contract for work or services referred to in article 25, 4 °, a), paragraph 2, of the Act of August 13, 2011;
4 ° the indication of the grounds for a duration of the framework agreement beyond seven years.
Section 3.
-Information of applicants, participants and bidders s. 39 § 1.
When the procedure involves an initial phase involving the introduction of applications for participation, as soon as she took the reasoned decision of selection, the awarding authority shall communicate to any candidate not selected: 1 ° the reasons for its selection, extracts from this decision;
2 ° in case of limitation, on the basis of a ranking, the number of candidates selected, the reasoned selection decision.
The invitation to submit a tender may be addressed to the candidates prior to the submission of this information.
§ 2. In the case of establishment and management of a system of qualification, as soon as she took the reasoned decision of qualification, the awarding authority shall communicate to any candidate unqualified, the reasons for its non-qualification, extracts from this decision.
This communication takes place promptly and no later than within fifteen days from the date of the decision.
Prior to the removal of the qualification of a contractor, supplier or service provider, the contracting authority shall inform it in writing of this intention and reasons the justifying at least fifteen days before the scheduled end to the qualification, as well as the opportunity to share its observations within the same period.

§ 3. In the case of a competitive dialogue, as soon as she took the decision on the solutions that could meet its needs and its requirements, the awarding authority communicates the reasoned decision on this choice to participants whose solution is not retained.
S. 40 § 1. As soon as she took the decision to reasoned award, the awarding authority shall: 1 ° to any bidder not selected, the reasons for its selection, extracts the decision motivated;
2 ° to any bidder whose offer was considered to be irregular, the reasons for his ouster, extracts the decision motivated;
3 ° any bidder whose offer was not chosen and the successful bidder, the reasoned decision.
The communication referred to in paragraph 1 includes, as appropriate: 1 ° the specific mention of the exact duration of the period referred to in article 43, paragraph 1;
2 ° the recommendation to notify the procuring authority within the same period, by facsimile, by electronic mail or by any other electronic means in the case where the person concerned applied for suspension in accordance with article 47;
3 ° the reference to the fax number or e-mail address to which the warning referred to in article 43, paragraph 3, can be sent.
The awarding authority immediately performs this communication by fax or by electronic mail or any other electronic means and, on the same day by registered mail.
§ 2. The information referred to in the § 1 does not create any contractual commitment to the successful bidder and suspends the period during which the tenderers shall remain bound by their tenders, provided that such a delay and article 43 are applicable.
For all of the introduced offerings for this market, the suspension of that period ends: 1 ° the absence request of suspension referred to in article 43, paragraph 2, at the end of the last day of the period referred to in article 43, paragraph 1;
2 ° in case of request of suspension referred to in article 43, paragraph 2, on the day of the decision of the Court of appeal referred to in section 47;
3 ° in any case no later than 45 days after the information referred to in the § 1.
S. 41. as soon as she took the decision to renounce the contract and, where appropriate, to launch a new market, the awarding authority shall communicate the decision motivated applicants, participants and bidders concerned.
S. 42 § 1. Without prejudice to article 12 of the law of August 13, 2011, some information may be withheld when disclosure would interfere with the application of a law, would be contrary to the public interest, would prejudice the legitimate commercial interests of public or private undertakings or could harm fair competition between companies.
§ 2. The authority awarding and any person who, due to their duties or missions that have been entrusted to it by the Commission, has knowledge of confidential information relating to a contract or that relate to procurement and the performance of the contract, provided by applicants, tenderers, contractors, suppliers or service providers, shall disclose any of this information. The information relates to particular technical or business secrets and the confidential aspects of tenders.
Also that the awarding authority took no decision, as the case may be, on the selection or qualification of applicants or participants of the regularity of tenders, the allocation of market or the waiver of the award of the contract, applicants, participants, applicants and third parties have no access to the documents relating to the procedure including applications for participation or qualification, offers and internal documents of the awarding authority.
Section 4. -Timeout article 43. the conclusion of the contract following the award decision cannot in no case take place before the expiry of a period of 15 days from the next day of the day where the reasoned decision is sent to the candidates, participants and tenderers concerned in accordance with article 40, § 1, paragraph 3. Absence of simultaneity between these shipments, the delay takes courses, for the candidate, participating or the tenderer concerned, the day of the last shipment.
When an application for suspension of the execution of the decision on allocation referred to in article 47 is made within the time limit referred to in paragraph 1, the contracting authority may enter into the contract before the review body, the appropriate first degree, statue is on the application of provisional measures, either at the request of suspension.
To this end, the applicant is invited to notify the procuring authority within that period, preferably by fax or electronic 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 when no request for suspension is introduced in that period.
The prohibition to proceed with the conclusion of the contract is the only applicant for a suspension introduced within the time limit referred to in paragraph 1.
S. 44. the conclusion of the contract can take place without applying section 43 in the following cases: 1 ° where a prior European advertising is not mandatory;
2 ° If the only tenderer concerned is one in which the contract is awarded and the absence of relevant candidates.
3 ° when it is a contract based on a framework agreement.
S. 45. the suspension of the execution of the award by the Court of appeal decision causes full suspension of the execution of the market eventually concluded in breach of article 43.
The awarding authority informs the purchaser without delay of the suspension and ordered him, as the case may be, do not start or stop the execution of the contract.
When after the suspension of right to the performance of the contract, no application for annulment of the decision to award or declaration of absence of effects of the market is submitted within the time limits provided for in article 55, both the suspension of execution of the decision to award the market are thrown by the review body.
Section 5. -Appeal procedures subsection 1.
-Cancellation art. 46. at the request of any person having or having had an interest in obtaining a particular contract and who has been or risks being harmed by the alleged infringement, the Court of appeal may annul the decisions taken by the awarding entities, including those on technical, economic and financial specifications discriminatory, on the ground that these decisions are a misuse of power or violent : 1 ° Community law on public contracts applicable to the market concerned, as well as the legislation on public procurement;
2 ° the provisions constitutional, legal or regulatory and general principles of law applicable to the relevant market;
3 ° the contract documents.
Sub-section 2. -Suspension article
47. under the same conditions as those referred to in article 46, the Appeals Board may, in the presence of a serious or an apparent illegality means without that proof of a risk of difficult to repair serious harm should be made, where appropriate on pain of penalty, suspend the execution of the decisions referred to in article 46 and, in relation to the Council of State, as long as it remains seized of an action for annulment : 1 ° order interim measures with the aim of correcting the alleged infringement or prevent that prejudice to the interests concerned;
2 ° order provisional measures necessary for the implementation of its decision.
According to the competent review body in accordance with article 56, request for suspension as well as, provided that it be introduced separately, the application for interim measures is introduced, before the Council of State, exclusively

the procedure of extreme urgency and before the judicial judge, exclusively according to the proceedings for interim relief.
The Court of appeal may, ex officio or at the request of one of the parties, take into account the probable consequences of the suspension of execution and of interim measures for all interests likely to be harmed, as well as the public interest, in particular defence and/or security, and may decide not to grant the suspension of execution or provisional measures where their negative consequences could outweigh their benefits.
The decision not to grant suspension of execution or provisional measures does not prejudice the other claim of the person seeking such measures.
The application for interim measures may be submitted with the application for suspension referred in paragraph 1 or, where the suspension of the execution of the decision is ordered, with the request for cancellation referred to in article 46 or separately.
Sub-section 3. - Damages art. 48. the Court of appeal grants damages to persons injured by one of the violations referred to in article 46 committed by the contracting authority and preceding the conclusion of the contract, provided that such proceeding considers as established both the damage that the causal link between it and the alleged violation.
Subsection 4. -Declaration of absence of effects s. 49. at the request of any interested person, the Court of appeal declares devoid of effects a contract in each of the following cases: 1 ° subject to section 50, where the awarding authority has signed a contract without a prior European advertising, while this is yet required by Community law on public contracts or by the law on public procurement;
2 ° when the awarding authority concluded the market without complying with the time limit referred to in article 43, paragraph 1, or wait until the instance use appropriate first degree, statue or on the request of suspension, on the request for provisional measures when this violation: a) has deprived a bidder of the possibility to initiate or complete the suspension action referred to in article 43 (, paragraph 2, and b) is accompanied by a breach of Community law on public contracts or procurement legislation and whether this latest violation has compromised the chances of a bidder to get the market;
3 ° when the awarding authority has concluded the contract on the basis of a framework agreement without any conditions are laid down in that framework agreement, when there are violations of the procedural rules determined by the King in accordance with the directive.
The awarding authority and the successful tenderer are called to the cause. To this end, the awarding authority shall communicate the identity of the winning bidder as soon as it is required by the applicant.
Declaration of absence of effects of the market applications may be submitted with the request for cancellation referred to in article 46 or separately.
S. 50. the declaration of absence of effects referred to in article 49, paragraph 1, 1 °, does not apply if the awarding authority, although believing that the procurement without a European advertising prior authorized under the provisions of Community law on public procurement and the legislation on public procurement, 1 ° issued prior to the Official Journal of the Union European voluntary Exante transparency notice , in accordance with the model set out in the implementing Regulation (EU) No 842/2011 of the Commission on August 19, 2011 establishing standard forms for the publication of notice in the context of the award of public contracts and repealing Regulation (EC) No 1564/2005, expressing its intention to accept the deal and;
2 ° has not entered the market before the expiration of a period of at least ten days from the day following the day of publication of this notice in the Official Journal of the European Union.
Notice referred to in paragraph 1 is also published in the Bulletin of tenders without that this last publication does however constitute a condition for the application of the exception to the declaration of absence of effects referred to in article.
The publication in the Bulletin of auctions is optional for contracts subject to the provisions of title 3 of the Act of August 13, 2011.
The notice referred to in paragraph 1, 1 °, contains the following information: 1 ° the name and contact details of the authority awarding;
2 ° the description of the subject of the contract;
3 ° the justification of the decision of the awarding authority to award the contract without prior European advertising;
4 ° the name and coordinates of the bidder to which it was decided to award the contract, and 5 ° where appropriate, any other information deemed useful by the contracting authority.
Only the notice published in the Official Journal of the European Union and the Bulletin of tenders has value of official publication.
As long as voluntary Exante transparency notice referred to in this article may not be published free of charge and at the same time in the Official Journal of the Union European and in the Bulletin of auctions via an introduction of data by means of electronic capture online or by data transfers between systems which allow disclosure automated and structured in accordance with the model set out in the implementing Regulation (EU No 842/2011 supra) , the publication of the notice can be validly performed as follows: 1 ° in the Official Journal of the European Union: using the template available on the web application sending the European Union for an online publication in the Official Journal of the European Union;
2 ° in the invitations to tender Bulletin: using appropriate model which is available on the e-Notification of the federal authority, or on a web application for notice of voluntary Exante transparency, another web application recognized by invitations to tender Bulletin, for publication online Bulletin of tendering of contracts awarded under this Act or the Act of June 15, 2006 , as the case may be.
S.
51. when it says a market devoid of effects, the Court of appeal pronounces: 1 ° the retroactive cancellation of all contractual obligations, or 2 ° limitation of the scope of the cancellation to the obligations that still need to be performed.
In the case referred to in paragraph 1, 2 °, the Court of appeal also addressed a financial penalty referred to in article 54.
S.
52 § 1. The Court of appeal has the right not to consider a market devoid of effects, even if found illegally on grounds referred to in article 49, if it finds, after having examined all relevant aspects, that overriding reasons of general interest, first and foremost related to defence and security interests, impose the effects of market are maintained.
In this case, the Court of Appeal pronounced as a substitution of the sanctions referred to in article 54.
With respect to the decision not to declare a market devoid of effects, the economic interest in the market to produce its effects cannot be regarded as an overriding reason in the case where, in exceptional circumstances, the absence of effects would have a disproportionate impact.
However, economic interests directly linked to the relevant market is not a compelling reason of general interest. The economic interests directly linked to the market include costs arising from a delay in the execution of the contract, the launch of a new procedure, change of economic operators for the realization of the contract and legal obligations resulting from the absence of effects.
In all cases, a market cannot be considered as producing no effect if the consequences of this lack of effects can seriously threaten the existence of a defense program and wider security which is essential for the interests of a State in security.
§ 2. The declaration of absence of effects referred to in article 49, paragraph 1, 3 °, does not apply if the awarding authority:-considers that the award of the contract complies with article 138, paragraph 2, 2 °, of the royal decree of January 23, 2012, Contracting and procurement of certain works contracts, supplies and services in the fields of defence and security , and;
-has done voluntary article 43;
-a respected the provisions of article 40, § 1, as soon as she took the decision to award in accordance with article 36, paragraph 1, 6 °.
S. 53. except in the cases provided for in articles 45 and 49 to 52, the market, once completed, may be suspended or declared devoid of effects by the review body, whatever it is.
Subsection 5. -Alternative article sanctions 54 § 1. As alternative punishment, the Court of appeal may, ex officio or at the request of an interested person, shorten the term of the contract, or impose a financial penalty to the awarding authority.
The awarding authority and the successful tenderer are called to the cause. To this end, the awarding authority shall communicate the identity of the winning bidder as soon as it is required by the applicant.
The pronounced penalty is effective, proportionate and dissuasive.
When she delivers a penalty, the Appeals Board may take into account all relevant factors, including the seriousness of the infringement, the behaviour of the awarding authority and the extent to which contract continues to produce effects.
The financial penalty amounts up to 15% of the amount excluding VAT

added of the contract awarded.
The granting of damages does not constitute a sanction within the meaning of this article.
§ 2. At the request of any person interested and after having assessed all relevant aspects, the Court of Appeal pronounced a sanction of target substitution in the § 1 when the awarding authority has entered into the market in breach of article 43, paragraphs 1 and 2, without however than this breach: 1 ° has private bidder of the possibility of introducing an application for suspension referred to in article 43 , paragraph 2, and 2 ° is accompanied by a breach of Community law on public contracts or procurement legislation, and that this latest violation could jeopardize the chances of the tenderer to obtain the market.
§ 3. The financial penalties pronounced as alternative sanctions are paid to the Treasury.
Sub-section 6. -Time art.
55 § 1. The remedies are, on penalty of inadmissibility, introduced within the time limits referred to in §§ 2 to 4, 5, paragraphs 1 and 6, from the publication, communication or gain knowledge of the Act, as the case may be.
§ 2. Action for annulment under article 46 is introduced within a period of sixty days.
§
3. The demand for suspension referred to in article 47 is introduced within a period of fifteen days. In case of application of article 50, the time is ten days.
§ 4. Action for damages referred to in article 48 is brought within a period of five years.
§ 5. The action for declaration of absence of effects referred to in article 49 is brought within a period of 30 days from the day following the day where the awarding authority, either: 1 ° has published the notice of award of the contract in accordance with the provisions laid down by the King, when the awarding authority decided to move this market without prior advertisement of a notice in the Official Journal of the European Union and in the Bulletin of the invitations to tender and that the notice of award of the contract contains the justification for this decision , or 2 ° informed the candidates and tenderers concerned of the conclusion of the contract at the same time giving the reasoned decision concerning them.
The appeal period is set at six months from the day following the day of the conclusion of the contract, when the awarding authority fails to comply with the provisions of paragraph 1.
§ 6. The application on substitution penalties referred to in article 54 is lodged within a period of six months.
Sub-section 7. -Instances of appeal art. 56. the Court of appeal for the review procedures referred to in articles 46 and 47 is: 1 ° the section of the administrative litigation of the Council of State when the awarding authority is an authority referred to in article 14, § 1, of coordinated laws on the Council of State;
2 ° the judge judicial when the awarding authority is not an authority referred to in article 14, § 1, of coordinated laws on the Council of State.
For the appeals procedures referred to in articles 48, 49 and 54, the Court of appeal is the judicial judge. For the declaration of absence of effects and alternative sanctions, judge sitting as in interim relief.
S. 57. unless provisions of this Act do derogate, the rules of jurisdiction and procedure before the Court of appeal are those laid down in the laws and orders relating to the Court of appeal.
When the review body receives a request for suspension of the execution of the award decision, it shall immediately inform the awarding authority.
The review body shall transmit to the Prime Minister, to a communication to the European Commission, the text of all decisions which it takes pursuant to article 50. It also transmits to the premier the other information on the functioning of the appeals procedures possibly requested by the European Commission.
S. 58. the review body must guarantee a level of confidentiality appropriate and the right to the respect of business secrets, relation, if classified, information contained in the files which are communicated to it by the parties to the cause, including by the awarding authority who is required to file the entire folder. The Appeals Board may however to know such information and take them into account. It is in respect of interest defence or security throughout the procedure. She decides to what extent and in what manner it should be to reconcile privacy and the secrecy of such information with respect for the rights of the defence and to ensure that the procedure meets as a whole, the right to a fair trial.
S. 59. in the case of a vexatious and reckless procedure, at the request of the contracting authority or the beneficiary of the Act, the Appeals Board may grant adequate compensation to the awarding authority or to the beneficiary to charge of the applicant. The total amount of any allowances cannot exceed 5% of the amount excluding tax on the added value of the contract awarded.
The above percentage may be increased by a royal decree deliberated in the Council of Ministers. This royal decree shall be confirmed by the law within a period of twelve months from its entry into force.
CHAPTER 2. -Markets not reaching European thresholds Section 1st. -Scope art.
60. unless otherwise provided, this chapter applies to all contracts not reaching the amount fixed by the King for the European advertising and under the Act of August 13, 2011.
For the purposes of this chapter, also means 'market', the establishment of a list of candidates and the establishment of a system of qualification.
Section 2. -Reasoned decision, information of applicants, participants and bidders and timeout article
61. articles 36, 37, 39, 40, § 1, paragraph 1, 41 and 42 shall apply to the contracts referred to in this chapter the amount to approve exceeding 8,500 euros excluding value added tax.
The King may adjust the amount possible adaptation to the amount of the threshold for the markets found by an accepted invoice.
S.
62. article 43 is applicable to works contracts subject to the mandatory disclosure at the Belgian level, the amount of the offer to approve excluding value added tax exceeding half of the amount fixed by the King for the European advertising. However, this paragraph does not apply to defence contracts referred to in article 346, 1, b), of the Treaty on the functioning of the European Union.
The awarding authority may make article 43, paragraph 1, applicable to the contracts referred to in this chapter and which are not referred to in section 1.
Once completed, the market may be suspended or declared devoid of effects by the review body, whatever it is.
Section 3. -Appeal procedures art. 63. articles 46 to 48 shall apply to contracts referred to in this chapter.
S. 64. where article 62, paragraph 1, is applicable, articles 44, 45, 49, 50, paragraphs 1 and 4, and 51 to 54 shall also apply.
In this case, 'European advertising' and 'Official Journal of the European Union', mentioned in these provisions, shall be replaced by the words "Belgian advertising" and "Bulletin of the auctions".
If the awarding authority, in accordance with rule 62, paragraph 2, made voluntary application of article 43, paragraph 1, articles 45 and 49 to 54 do not apply.
S. 65. articles 55, §§ 1 to 4, and 56 to 59 shall apply to contracts referred to in this chapter. The provisions of article 55, §§ 5 and 6, are also applicable to contracts referred to in article 62, paragraph 1.
CHAPTER 3. -Mechanism corrector art. 66 § 1. The Commission European may invoke the procedure provided for in §§ 2 to 5 when, prior to the conclusion of a contract, it considers that a serious infringement of Community public procurement law has been committed during a procedure falling within the scope of application of chapter I of this title.
§ 2. The European Commission shall notify the Belgian State the reasons why it considers that a serious infringement has been committed and request correction by appropriate means.

§ 3. In the twenty-one calendar days following the receipt of the notification referred to in § 2, the Belgian State shall inform the Commission: has) confirmation that the infringement has been corrected;
(b) conclusions motivated explaining why no correction was made, or c) a notification stating that the procedure in question has been suspended, either at the initiative of the awarding authority, or in the exercise of the powers provided for in article 47.

§ 4. Conclusions motivated communicated in accordance with § 3, b), may rely among other matters on the fact that the alleged infringement is already the subject of judicial or another instance. In this case, the Belgian State shall inform the Commission of the outcome of these proceedings as soon as it is known.
§ 5. In the case of notification indicating that a procedure has been suspended in accordance with § 3, c), the Member State concerned shall notify to the European Commission the lifting of the suspension or the opening of other related proceedings, wholly or partially, the previous procedure. This new notification confirms that the alleged infringement has been corrected or include conclusions motivated explaining why no correction was made.

§ 6. When the Commission invokes the procedure provided for in §§ 2-5,

the concerned awarding authority is obliged to cooperate with the authorities responsible to communicate a response to the European Commission. The awarding authority is particularly required to produce the fastest routes to the Prime Minister, within ten days of the receipt of the notification of the European Commission, all documents and information required to provide a satisfactory response.

TITLE IV SINGLE CHAPTER. -Provisions finals s. 67. the Act of June 16, 2006 on allocation, the information to candidates and tenderers and the waiting time on procurement, and some markets works, supplies and services, as amended by the law of January 12, 2007, is repealed.
S. 68. the calculation of the time limits laid down in this Act is carried out in accordance with Regulation (EEC, Euratom) no 1182/71 of the Council of 3 June 1971 determining the rules applicable to periods, dates and terms into Community law.
S.
69. this Act comes into force on July 1, 2013.
Promulgate this Act, order that it self under the seal of the State and published by le Moniteur.
Given to Brussels, June 17, 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 sealed with the seal of the State: the Minister of Justice, Mrs.
TURTELBOOM _ Note (1) records of the House of representatives: 53-2752-2012/2013: No. 001: Bill.
No. 002: amendments.
No. 003: report.
No. 004: Text adopted by the commission.
No. 005: amendment.
No. 006: Text adopted in plenary meeting and transmitted to the Senate.
Full record: 29 and 30 may 2013.
The Senate documents: 5-2128-2012/2013: No. 1: draft transmitted by the House of representatives.
No. 2: report.
No. 3: Texts adopted in plenary meeting and submitted to Royal assent.
Annals of the Senate: June 13, 2013.