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Law On Public Procurement And Some Markets Works, Supplies And Services In The Fields Of Defence And Security

Original Language Title: Loi relative aux marchés publics et à certains marchés de travaux, de fournitures et de services dans les domaines de la défense et de la sécurité

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belgiquelex.be - Carrefour Bank of Legislation

13 AOUT 2011. - Law on public procurement and certain contracts of work, supplies and services in the areas of defence and security



ALBERT II, King of the Belgians,
To all, present and to come, Hi.
The Chambers adopted and We sanction the following:
PART 1er - General provisions and definitions
Article 1er. This Act regulates a matter referred to in Article 78 of the Constitution.
It partially transposes Directive 2009/81/EC of the European Parliament and the Council of 13 July 2009 on the coordination of procedures for procurement of certain contracts of work, supplies and services by procuring authorities or procuring entities in the areas of defence and security, and amends Directives 2004/17/EC and 2004/18/EC.
Art. 2. For the purposes of this Act:
1° procuring power:
(a) the State;
(b) Territorial authorities;
(c) public law bodies;
(d) persons, regardless of their form and nature who, at the time of the decision to launch a contract:
(i) were created to meet specific needs of general interest other than industrial or commercial, and
(ii) have a legal personality, including
- the activity is financed mainly by the authorities or organizations mentioned in 1°, (a), (b), or (c);
- management is subject to control by these authorities or agencies;
- more than half of the members of the administrative, management or oversight body are designated by these authorities or agencies;
(e) associations formed by one or more procuring powers referred to in 1°, (a), (b), (c) or (d);
2° public enterprise: any enterprise carrying on an activity referred to in Part III of the Act of 15 June 2006 on public procurement and certain contracts of work, supplies and services, as referred to in the Act of 15 June 2006, on which the procuring authorities may directly or indirectly exert a dominant influence on the property, financial participation or the rules governing it. The dominant influence is presumed when they, directly or indirectly, affect the company:
- hold the majority of the company's capital, or
- have the majority of votes attached to the shares issued by the company, or
- may designate more than half of the members of the corporate administration, management or oversight body;
3° procuring entity: the person of private law carrying on an activity referred to in Part IV of the Act of 15 June 2006 and enjoying special or exclusive rights within the meaning of Article 2, 3°, of that Act;
4° purchasing center or market center: a procuring power within the meaning of 1° or a European public body that:
(a) acquire supplies or services for procuring authorities, public enterprises or procuring entities or
(b) the procurement of public contracts, contracts or framework agreements for work, supplies or services for procuring authorities, public enterprises or procuring entities;
5° Contractor, supplier and service provider: any natural or legal person or public entity or grouping of such persons or organizations that offer, respectively, the realization of works or works, supplies or services on the market;
6° candidate: the contractor, supplier or service provider who applies for participation in a public procurement or market selection;
7° request for participation: the written and express demonstration of a candidate for selection in a market, a list of selected candidates or a qualification system;
8° selection: the decision of a procuring authority on the choice of candidates or bidders on the basis of the right of access and qualitative selection;
9° selected candidate: the candidate selected during the selection;
10° Bidder: Contractor, supplier, service provider or selected candidate who delivers an offer for a public market or market;
11° offers: the bidder's commitment to execute the contract on the basis of market documents and the conditions it presents;
12° adjudicator: the bidder with which the public market or market is concluded.
Art. 3. For the purposes of title 2 of this Act, the following means:
1° public procurement: the cost-effective contract between one or more contractors, service providers or service providers and one or more procuring or public undertakings, with the purpose of performing work, supplying products or providing services;
2° public contract of work: a public market whose purpose is either to carry out, or to jointly design and carry out work relating to one of the activities referred to in Division 45 of the Common Vocabulary for Public Procurement (CPV) or a work, or to carry out, by any means, a work that meets the needs specified by the procuring authority or the public enterprise. A "work" is the result of a set of building or civil engineering works intended to perform an economic or technical function by itself;
3° public procurement of supplies: public market other than a contract of work for the purpose of purchase, lease, rental or sale, with or without purchase option, of products.
A public market with the purpose of supplying products and, as an accessory, installation and installation work is considered a public procurement of supplies;
4° public service market: public contract other than a public contract of work or supplies relating to the provision of services referred to in Annexes 1re and 2 of this Act.
A public market with both supplies and services is considered to be a public service market where the value of the services in question exceeds that of supplies incorporated in the public market.
A public market with the purpose of services and with activities referred to in Division 45 of the Common Vocabulary for Public Procurement only as an accessory to the principal object of the market is considered a public service market;
5° open procedure: the procurement procedure that can only be used for markets that do not reach the threshold of European advertising, in which any interested contractor, supplier or service provider may present an offer and in which the opening session of the offers is public;
6° restricted procedure: the procurement procedure to which an interested contractor, supplier or service provider may request participation and in which only candidates selected by the procuring authority or public enterprise may present an offer and attend the opening session of the tenders;
7° procedure negotiated without advertising: the procurement procedure in which the procuring authority, or the public enterprise consults contractors, suppliers or service providers of its choice and negotiates the conditions of the public market with one or more of them;
8° procedure negotiated with advertising: the procurement procedure in which the procuring power or public enterprise invites, after a prior advertisement, the candidates selected to submit an offer, the market conditions being then negotiated. For markets that do not reach the amount set for European advertising, the King may provide that any interested contractor, supplier or service provider may issue an offer;
9° competitive dialogue: the procurement procedure to which an interested contractor, supplier or service provider may request participation and in which the procuring power or public enterprise conducts a dialogue with the candidates selected for this procedure, with a view to developing one or more solutions that meet its needs and on the basis of which or where the successful candidates will be invited to provide an offer;
10° electronic auction: an iterative process according to an electronic device for introducing new prices, reduced resale, and/or new values for certain elements of the offers, which comes after a first complete evaluation of the offers, allowing their rankings to be carried out on the basis of automatic processing. As a result, the electronic auction cannot be used for certain services or work markets related to intellectual benefits;
11° public contract for promotion of work: the public market for both financing and execution of work and, where appropriate, any provision of services related to them;
12° framework agreement: the agreement between one or more procuring authorities or public enterprises and one or more contractors, suppliers or service providers, with the aim of establishing the terms governing public procurement to be passed over a given period of time, including with respect to prices and, where applicable, the quantities envisaged;
13° attribution of the public market: the decision taken by the procuring authority or the public undertaking designating the successful bidder;
14° public market conclusion: the birth of the contractual relationship between the procuring power or the public enterprise and the procuring entity;
15° Common vocabulary for public procurement: the reference nomenclature applicable to public procurement, adopted by Regulation (EC) No. 2195/2002, in abbreviated CPV;
16° military equipment: equipment specifically designed or adapted for military purposes, intended for use as weapons, ammunition or war equipment;
17° Sensitive equipment, sensitive work and sensitive services: equipment, work and services for security purposes that involve, require and/or contain classified information;
18° Civil purchases: contracts that are not covered by Article 15 and are intended for work, supplies or logistics services of a non-military nature carried out under the conditions referred to in Article 18, § 2, 4°;
19° classified information: any information or material, regardless of the form, nature or mode of transmission, to which a certain level of security classification or level of protection has been assigned and which, in the interest of national security and in accordance with the legislative, regulatory or administrative provisions in force in a Member State, requires protection against any diversion, destruction, disclosure, loss or access by unauthorized persons, or any other type of access
20° Government: a national, regional or local authority of a Member State or a third country;
21° crisis: any situation in a Member State or in a third country, in which damage has been caused, the proportions of which clearly exceed those of damages of everyday life and which substantially compromise the life and health of the population or have substantial effects on the value of goods, or which require measures regarding the supply of the population to commodities. There is also a crisis when the occurrence of such damage must be considered imminent. Armed conflicts and wars are crises within the meaning of this Act;
22° contract of subcontracting: a costly contract between an adjudicator and one or more third-party contractors, suppliers or service providers for the purpose of carrying out the contract in question and for the purpose of the work, supply of products or service delivery;
23° related business: any company on which the successful bidder may exercise, directly or indirectly, a dominant influence, or any company that may exert a dominant influence on the successful bidder or that, as the successful bidder, is subject to the dominant influence of another company by virtue of the ownership, financial participation or rules that govern it. The dominant influence is presumed when a business, directly or indirectly, with respect to another business:
- holds the majority of the company's equity, or
- has the majority of votes attached to the shares issued by the company, or
- is entitled to appoint more than half of the members of the corporate administration, management or oversight body;
24° written or in writing: any set of words or figures that can be read, reproduced, then communicated. This set may include information transmitted and stored by electronic means;
25° electronic means: a means using electronic processing equipment, including digital compression, and data storage, and using diffusion, transmission and receipt by wire, radio, optical means or other electromagnetic means;
26° life cycle: all of the successive states that can be known to a product, i.e., research and development, industrial development, production, repair, modernization, modification, maintenance, logistics, training, testing, withdrawal and disposal;
27° research and development: the set of activities involving fundamental research, applied research or experimental development, which may include the realization of technological demonstrators, i.e. devices to demonstrate the performance of a new concept or technology in a relevant or representative environment;
28° market documents: market documents, including all complementary documents and other documents to which they refer. They shall include, where appropriate, the notice of contract and the special specifications containing the particular conditions applicable to the market and the agreement signed by the parties;
29° lot: the subdivision of a market likely to be assigned separately, in principle for a separate execution.
Art. 4. For the purposes of Part 3 of this Act, the following means:
1° market: the contract with the same characteristics as a public market, except that it is entered into by one or more procuring entities within the meaning of Article 2, 3°;
2° candidate, application for participation, selection, candidate selected, bidder, offer and bidder: the concepts with the same scope as those defined in article 2, 6° to 12°, except that it is used by a procuring entity within the meaning of article 2, 3°;
3° contract of work, supplies or services: the market for work, supplies or services within the meaning of Article 3, 2° to 4°;
4° restricted procedure: the procurement procedure to which a contractor, supplier or service provider may request participation and in which only candidates selected by a procuring entity within the meaning of Article 2, 3°, may offer an offer;
5° procedure negotiated without advertising, procedure negotiated with advertising and competitive dialogue: the procurement procedures having the same characteristics as those defined in Article 3, 7°, 8° and 9°, with the exception of the fact that it is used by an entity within the meaning of Article 2, 3°;
6° Electronic auction and framework agreement: the process or agreement having the same characteristics as those defined in Article 3, 10° and 12°, except that it is used by an entity within the meaning of Article 2, 3°;
7° award of the market and conclusion of the market: the same concepts as those defined in Article 3, 13° and 14°, with the exception of the fact that it is used by an entity within the meaning of Article 2, 3°;
8° Common Vocabulary for Public Procurement, Military Equipment, Sensitive Equipment, Sensitive Work and Sensitive Services, Civil Procurement, Classified Information, Government, Crisis, Subcontract, Related, Written or Written Enterprise, Electronic Medium, Life Cycle, Research and Development, Market Documents and Lot: The same concepts as those defined in Article 3, 15° to 29°.
PART 2. - Public procurement
CHAPTER 1er - General principles
Art. 5. The procuring authorities and public enterprises deal with contractors, suppliers and service providers in a manner that respects equality, in a non-discriminatory manner, and act transparently.
Art. 6. Public contracts are awarded with competition, after verification of the right of access, qualitative selection and examination of the offers of participants, in accordance with one of the procurement procedures set out in Chapter 4.
Art. 7. § 1er. Public markets have gone through.
The lump-sum nature of public procurement is not an obstacle to the revision of prices based on specific economic or social factors.
The revision must meet the evolution of prices of the main components of the return price. The King sets out the terms and conditions of the revision and may make it mandatory for markets that reach certain amounts or delivery times that He sets.
If the contractor, supplier or service provider uses subcontractors, the contractors must, where appropriate, be subject to the revision of their prices in accordance with the terms and conditions to be determined by the King and to the extent appropriate to the nature of the benefits they perform.
§ 2. Public markets can be passed without fixed pricing:
1° in exceptional cases, for complex works, supplies or services or a new technique, presenting important technical hazards, which require the start of the performance of the services while all conditions of achievement and obligations cannot be determined completely;
2° in case of extraordinary and unpredictable circumstances, when they relate to urgent work, supplies or services whose nature and conditions of realization are difficult to define.
Art. 8. A payment can only be made for a service done and accepted. In this capacity, depending on what is provided in the market documents, the procurements constituted for the execution of the market and approved by the procuring authority or public enterprise.
However, advances may be granted under the conditions established by the King.
Art. 9. § 1er. Without prejudice to the application of any other prohibitions resulting from a law, decree, order, regulatory or statutory provision, it is prohibited for any public servant, public officer or other person related to the procuring power or public enterprise in any manner to intervene in any way, directly or indirectly, in the course of the transfer and execution of a public market,
§ 2. The existence of this conflict of interest is in any case presumed:
1° as soon as there is a kinship or alliance, in direct line up to the third degree and, in collateral line, up to the fourth degree, or legal cohabitation, between the grievor, the public officer or the natural person referred to in paragraph 1er and one of the candidates or bidders or any other natural person who exercises leadership or management authority on behalf of one of them;
2° where the employee, public officer or natural person referred to in paragraph 1er is itself or by an interposed person, owner, co-owner or active partner of one of the candidate or bidder companies or exercises, in law or in fact, himself or by an interposed person, a management or management authority.
The grievor, the public officer or the natural person in any of these situations is required to object.
§ 3. Where the employee, public officer or natural or legal person referred to in subsection 1er owns, either by interposed person, one or more shares or shares representing at least five per cent of the social capital of one of the candidate or bidder companies, it has the obligation to inform the procuring power or the public enterprise.
Art. 10. Any act, agreement or agreement that may distort the normal conditions of competition is prohibited. Applications for participation or offers made following such an act, agreement or agreement must be waived.
If such an act, agreement or agreement has resulted in the conclusion of a public market, the procuring authority or public enterprise shall apply the measures provided for in the event of a breach of the terms of that contract, unless otherwise provided by a reasoned decision.
Art. 11. The King sets the rules for means of communication between procuring authorities and public enterprises and contractors, suppliers and service providers. The chosen means of communication must be generally available and cannot restrict access to the procurement procedure.
Art. 12. The procuring authority or public enterprise does not disclose, subject to contract rights, information that contractors, suppliers and service providers disclose to it in confidence. This information includes technical or commercial secrets and confidential aspects of offers.
The procuring authority or public enterprise may impose requirements to protect the confidential nature of the information it provides to candidates and bidders.
In any case, whatever the circumstances, candidates, bidders and third parties have no access to the documents relating to the procurement procedure as long as the procuring power or public enterprise has not made a decision, as the case may be, regarding the selection of candidates, the regularity of bids, the award of the contract or the waiver to continue the procedure.
CHAPTER 2. - Scope of application
Art. 13. When they move from public procurement in the areas of defence and security, the procuring authorities and public enterprises, where the latter operate under Part III of the Act of 15 June 2006, are subject to the application of this Act.
Art. 14. A procuring power or a public enterprise that resorts to a procurement power plant or markets as defined in Article 2, 4°, is exempt from the obligation to organize a procurement procedure itself.
When the power plant is a European public body, a procuring power or a public enterprise is granted the same exemption provided that:
1° This body applies passing rules in accordance with all provisions of Directive 2009/81/EC, and
2° awarded markets may be subject to effective remedies comparable to those provided for in this directive.
Art. 15. This Act applies to public procurement in the areas of defence and security that are:
1° the supply of military equipment, including their spare parts, components, and/or sub-assemblies;
2° the supply of sensitive equipment, including their spare parts, components, and/or sub-assemblies;
3° of works, supplies and services directly related to equipment referred to in 1° and 2° for all or part of its life cycle;
4° of work and services for specific military purposes or sensitive work and services.
This Act is without prejudice to the application of Articles 36, 51, 52, 62 and 346 of the Treaty on the Functioning of the European Union.
Art. 16. A public market for work, supplies or services within the scope of this Act and partly within the scope of the Act of 15 June 2006 relating to public procurement and certain contracts of work, supplies and services has passed in accordance with this Act, provided that the procurement of a single public market is justified by objective reasons.
A public market for work, supplies or services in part within the scope of this Act and, for the other party, not covered by this Act, nor by the Act of 15 June 2006, is not subject to the application of this Act, provided that a single public market is justified by objective reasons.
However, the decision to enter a single public market may not be taken to exempt markets from the application of this Act or the Act of 15 June 2006.
CHAPTER 3. - Exclusions
Art. 17. None of the rules, procedures or provisions, any of the public programs and contracts referred to in this chapter may be used for the purpose of excluding the provisions of this Act.
Art. 18. § 1er. This Act does not apply to public contracts governed by:
1° of the specific procedural rules pursuant to an international agreement or arrangement between one or more Member States and one or more third countries;
2° of the rules of specific procedures pursuant to an international agreement or arrangement with respect to the parking of troops and relating to enterprises of a Member State or a third country;
3° the rules of specific procedures of an international organization buying for the performance of its missions, or the markets that must be awarded by a Member State in accordance with the said rules.
§ 2. This Act does not apply:
1° to public markets for which the application of the rules of this Act would require a Member State to provide information to which it would consider disclosure contrary to the essential interests of its security;
2° to public markets for intelligence activities;
3° to public markets passed through a cooperation program based on research and development activities, conducted jointly by at least two Member States for the development of a new product and, if necessary, at the subsequent phases of all or part of the life cycle of this product. At the conclusion of such a programme of cooperation between Member States only, the latter shall notify the European Commission of the share of research and development expenditures in relation to the overall cost of the programme, the agreement on cost-sharing and the envisaged share of purchase for each Member State, if any;
4° to public procurement in a third country, including for civilian procurement, carried out when forces are deployed outside the Union territory, where operational requirements require that they be concluded with local contractors, suppliers or service providers located in the area of operations;
5° to public procurement of services for the purpose of acquiring or leasing, regardless of the financial terms, land, existing buildings or other immovable property or that relate to rights to such property;
6° to public contracts awarded by a government to another government concerning:
(a) provision of military equipment or sensitive equipment;
(b) work and services directly related to such equipment, or
(c) work and services for specific military purposes or sensitive work and services;
7° to public procurement for arbitration and conciliation services;
8° to public markets for financial services, with the exception of insurance services;
9° to employment contracts;
10° to research and development services. The law is, on the other hand, applicable to public markets whose fruits belong exclusively to the procuring power or to the public enterprise for its use in the exercise of its own activity and whose service delivery is fully paid by the procuring power or by the public enterprise.
CHAPTER 4. - Passing procedures
Section 1re. - Advertising
Art. 19. Except as provided in this Act and without prejudice to European advertising from certain amounts, public procurement is subject to appropriate advertising, the King sets out the terms and conditions.
The publication in the Bulletin des Adjudications is free, provided that the data is introduced by means of online electronic input or by data transfers between systems for automated and structured publication.
Section 2. - Right of access and qualitative selection
Art. 20. The King sets the right of access rules as well as those relating to the qualitative selection of candidates and bidders.
Except as peremptory requirements of general interest, is excluded from participation in any public market any candidate or bidder who has been convicted by a judicial decision that has the force of anything deemed to be known by the procuring power or public enterprise for participation in a criminal organization, corruption, fraud or money laundering, terrorist offence or offence related to terrorist activities or incitement, assistance, complicity or attempt to commit such offences. The King may derogate from this principle for small markets below an amount fixed by him.
The King rules the consequences on the offer introduced by a natural person in the case of the substitution of that person by a legal person in the course of the proceedings. It can impose on these persons a joint responsibility.
Art. 21. Contractors, suppliers and service providers from third countries to the European Union are only allowed to file an application for participation or an offer pursuant to this title if they can, for that purpose, rely on an international treaty or an act of an international institution, within the limits and conditions provided for in the relevant act.
A market notice or, in its absence, another market document may provide for a broader provision.
Section 3. - Passing mode
Sub-section 1re. - Adjudication, tender and procedure negotiated with advertising
Art. 22. Public procurements have passed by limited procedure either by limited bidding or by limited tendering, or by procedure negotiated with advertising.
Public markets may not be passed by open procedure, either by open tender or by open tender, unless their amount does not reach the amounts fixed for European advertising.
The King sets out the organization of these modes of passation. It may subject to specific rules of procurement the public contracts to which Article 346, 1, b, of the Treaty on the Functioning of the European Union applies.
Art. 23. When the procuring authority or public enterprise decides to pass the public procurement by auction, the bidder must be awarded to the bidder who delivered the lowest regular offer, subject to a lump sum allowance of ten per cent of the amount, excluding the value added tax, of that offer. This lump-sum allowance may be supplemented by an allowance for compensation for the totality of the damage, when it results from an act of corruption within the meaning of Article 2 of the Civil Convention on Corruption, made in Strasbourg on 4 November 1999.
For the determination of the lowest regular offer, the procuring power or the public company takes into account the prices offered and other quantifiable elements that will, in a certain way, increase its disbursements.
Art. 24. When the procuring authority or public enterprise decides to make the public procurement by solicitation of tenders, the bidder must be awarded to the bidder who has delivered the most economically advantageous regular offer from the point of view of the procuring power or the public enterprise, taking into account the award criteria.
The attribution criteria must be indicated in the notice of contract or in another market document. These criteria must be linked to the subject matter of the market and allow an objective comparison of offers based on a value judgment. The criteria are, for example, quality, price, technical value, aesthetic and functional character, environmental characteristics, cost of use, cost of life cycle, cost-effectiveness, after-sales service and technical assistance, delivery date and delivery or delivery time, spare parts guarantees, supply security, interoperability and operational characteristics.
For public markets reaching the amount set for European advertising, the procuring power or the public enterprise specifies the relative weighting of each of the attribution criteria, which may eventually be expressed within a range whose maximum deviation must be appropriate. If such a weighting is not possible for demonstrable reasons, the criteria are mentioned in a decreasing order of importance.
For public procurements that do not reach the above-mentioned amount, the procuring authority or the public enterprise specifies either their relative weighting as provided for in the preceding paragraph or their decreasing order of importance. If not, the attribution criteria have the same value.
Sub-section 2. - Negotiated procedure
Art. 25. It can only be processed by procedure negotiated without advertising, but if possible after consultation with several contractors, suppliers or service providers, in the following cases:
1° in the case of a public contract of work, supplies or services:
(a) where the expenditure to be approved for a public market does not exceed, excluding the value added tax, the amounts fixed by the King;
(b) where the exception of Article 346 of the Treaty on the Functioning of the European Union is invoked. This exception may only be invoked if this may be justified for public security reasons or is necessary for the protection of the essential security interests of one or more member States;
(c) where no application for appropriate participation or request for appropriate participation or any appropriate offer or offer has been filed in response to a limited procedure, a procedure negotiated with advertising or a competitive dialogue, provided that the initial market conditions are not substantially amended and a report is submitted to the European Commission at its request.
This provision also applies where the first procedure is an open procedure for a public procurement contract not amounting to the amount set for European advertising within the meaning of section 22, paragraph 2;
(d) where only irregular offers or unacceptable offers have been filed in response to a limited procedure, a procedure negotiated with advertising or a competitive dialogue, provided that the procuring authority or public enterprise consults all bidders who met the qualitative selection requirements and have made a formal offer in the first proceedings and that the initial conditions of the public market are not substantially altered.
This provision also applies where the first procedure is an open procedure for a public procurement contract not amounting to the amount set for European advertising within the meaning of section 22, paragraph 2.
When the first procedure has been obligatoryly subject to European advertising, only bidders meeting the above requirements and conditions can be consulted.
Where the first procedure has not been necessarily subject to European advertising, the procuring authority or the public enterprise may, in order to expand competition, consult also contractors, suppliers or service providers who, in his view, may meet the requirements for access and quality selection rights, whether or not they have provided an offer in the first proceedings;
(e) where the emergency resulting from a crisis is not compatible with the deadlines required by the restricted procedure or the procedure negotiated with advertising, including the reduced time limits set by the King;
(f) to the extent strictly necessary, where the imperative emergency, resulting from unpredictable events for the procuring power or the public enterprise is not compatible with the time limits required by the limited procedure or the procedure negotiated with advertising, including the reduced time limits set by the King. In no case shall the circumstances invoked to justify the imperative emergency be attributable to the procuring power or the public enterprise;
(g) where, for technical reasons or for the protection of exclusive rights, the public market may only be entrusted to a specified contractor, supplier or service provider;
2° in the case of a public procurement of supplies or services:
(a) for research and development services not excluded under Article 18, § 2, 10°;
(b) for products manufactured solely for research and development purposes, with the exception of production in quantities to establish the commercial viability of the product or to amortize research and development costs;
3° in the case of a public supply market:
(a) where additional deliveries are to be made by the original supplier and are intended either for the partial renewal of current supplies or facilities, or for the extension of existing supplies or facilities, where the change of supplier would require the procuring authority or public enterprise to acquire different technical equipment resulting in in incompatibility or technical difficulties of disproportionate use and maintenance.
The duration of these markets, as well as renewable markets, may not exceed five years, except in exceptional circumstances determined by taking into account the expected lifetime of the delivered objects, installations or systems, as well as the technical difficulties that may arise from a supplier change;
(b) in the case of listed and purchased supplies at a raw material exchange;
(c) where supplies are purchased under particularly advantageous conditions, either from a supplier permanently certifying its business activities, or from curators, agents responsible for a transfer under the authority of justice or liquidators of bankruptcy, judicial reorganization or similar procedure provided for in national legislation or regulations;
4° in the case of a public contract of work or services:
(a) where work or additional services not included in the originally envisaged project or in the original contract have become necessary, as a result of an unforeseen circumstance, to perform the work or services as described therein, provided that the assignment is made to the contractor or service provider who performs the work or services:
(i) where such complementary work or services cannot be technically or economically separated from the initial market without major disadvantage for the procuring power or public enterprise, or
(ii) where such work or services, although separable from the execution of the initial market, are strictly necessary for its further development.
For markets up to the amount set for European advertising, the cumulative amount of contracts awarded for work or complementary services shall not exceed fifty percent of the original market value;
(b) for new work or services consisting in the repetition of similar work or services entrusted to the original contract contractor by the same procuring authority or public enterprise, provided that such work or services are in accordance with a basic project and that this project has been the subject of an initial contract passed by limited procedure, by procedure negotiated with advertising or by a competitive dialogue. The possibility of using this procedure is indicated as soon as the first market is competitive.
The decision to award repetitive contracts must also take place within five years of the conclusion of the initial market, except in exceptional circumstances determined taking into account the expected life of the objects, installations or systems delivered, as well as the technical difficulties that may result in a change of contract.
This provision also applies where the first procedure is an open procedure for a public procurement contract not amounting to the amount set for European advertising within the meaning of section 22, paragraph 2;
5° for markets related to the provision of marine and air transport services for the armed forces or security forces of a Member State, which are or will be deployed abroad, where the procuring power or public enterprise must obtain these services from service providers that guarantee the validity of their offer only for very short periods so that the deadlines applicable to the restricted procedure or the procedure negotiated with advertisements, including Kings, may be met only for very short periods of time.
Art. 26. In case of proceedings negotiated with or without advertising, the procuring authority or the public enterprise shall ensure equal treatment of all bidders. In particular, it does not provide discriminatory information that may benefit certain bidders. The King sets out the other provisions of the negotiated procedure without advertising.
Subsection 3. - Competitive dialogue
Art. 27. The procuring power or public enterprise may only use the competitive dialogue procedure in the case of a particularly complex market, when:
1° is objectively not able to define the technical means to meet its needs or to assess what the market can offer in terms of technical, financial or legal solutions, and
2° considers that the use of open or restricted proceedings will not allow the market to be passed.
The King sets the rules for a competitive dialogue. These include:
- equal treatment of all participants during the dialogue;
- the non-disclosure to participants of the proposed solutions or other confidential information provided by a participant in the dialogue without the agreement of the dialogue.
Sub-section 4. - Specific or complementary markets and procedures
Art. 28. A procuring power or a public enterprise may use a public contract to promote work under the conditions laid down by the King.
These conditions include:
- the setting of contractual guarantees that may be required by the proponent;
- the proponent's obligation to fully fulfil the responsibilities of the contractor, pursuant to sections 1792 and 2270 of the Civil Code;
- the obligation for the proponent to comply with the obligations of the legislation organizing the aggregation of construction contractors, or to use contractors meeting these obligations, whether or not it personally performs the work.
As long as it is necessary for the organization and management of the promotion market, the King is empowered to provide for exemptions to the laws of January 10, 1824 on the right of emphytéosis and the right of surface when setting the above-mentioned conditions.
Art. 29. In restricted proceedings or in proceedings negotiated with advertising or, where appropriate, in open proceedings, a procuring authority or a public enterprise may precede the award of contracts for supplies and services of an electronic auction, provided that the specifications of the public market can be accurately determined.
Under the same conditions, the electronic auction may be used during the competition of the parties to a framework agreement, as well as for the markets passed through a dynamic acquisition system.
Electronic auctions may not be used in an abusive manner or in a manner that prevents, restricts or distorts competition, or in a manner that alters the subject matter of the market.
The King sets out the conditions under which the electronic auction can be used.
Art. 30. A procuring power or a public enterprise may enter into framework agreements.
The choice of parties to the framework agreement as well as the allocation of public contracts based on this agreement must be based on the same allocation criteria.
When awarding public contracts based on a framework agreement, no substantial changes can be made to the terms already set out in the framework agreement.
The duration of a framework agreement may not exceed seven years, except in exceptional circumstances determined taking into account the expected lifetime of the delivered objects, installations or systems, as well as the technical difficulties that may arise from a supplier change.
Framework agreements may not be used in an abusive manner or in a manner that prevents, restricts or distorts competition.
The King sets out the conditions governing the framework agreement.
Subsection 5. - Common provisions
Art. 31. The completion of a procedure does not imply the obligation to award or conclude the public market. The procuring power or the public enterprise may either give up to attribute or enter into the public market, or redo the procedure, if necessary in another way.
Art. 32. A public market can be divided into several lots.
In this case, the procuring authority or the public enterprise has the right to assign only some and, eventually, to decide that the other lots will be the subject of one or more new public markets, if necessary in another mode.
Art. 33. § 1er. When the procuring power or public enterprise demonstrates its need, it may use a public market that is split into one or more firm slices and one or more conditional slices. The conclusion of the market concerns the entire public market, but only engages the procuring power or public enterprise for the firm slices. The execution of each conditional sentence is subject to its decision made to the notice of the award in accordance with the terms set out in the relevant market documents.
§ 2. Upon conclusion, a public market may include one or more extensions, in accordance with the terms mentioned in the market documents. The total duration, including renewals, may generally not exceed four years from the conclusion of the market.
Art. 34. In the case of a joint contract on behalf of different procuring authorities or public enterprises and, where applicable, persons of private law, interested persons shall designate the authority or body that shall, in their collective name, intervene as the procuring power. Market documents may provide for a separate payment for each of these persons.
CHAPTER 5. - Implementing conditions
Section 1re. - General Rules of Enforcement
Art. 35. The King sets the general rules for the execution of public contracts.
It may subject to specific rules of execution the public contracts to which Article 346, 1, b, of the Treaty on the Functioning of the European Union applies.
Art. 36. In accordance with the principles of the Treaty on the Functioning of the European Union, and provided that they are not directly or indirectly discriminatory and that they are mentioned in the documents of the market, the procuring power or the public enterprise may impose conditions of execution to take into account objectives such as:
1° the implementation of professional training actions for unemployed or young people;
2° the promotion of equal opportunities policy in relation to the employment of persons who are not sufficiently integrated into the professional circuit;
3° the fight against unemployment;
4° the obligation to comply, in substance, with the provisions of the fundamental conventions of the International Labour Organization, in the case that they have not already been implemented in the national law of the country of production;
5° protection of the environment.
Art. 37. § 1er. A bidder or an adjudicator who is not a procuring authority is free to select its subcontractors for subcontracts not covered by the provisions of paragraph 2, 2°. He cannot be required to discriminate against potential subcontractors, particularly because of their nationality.
§ 2. Market documents may include:
1° the bidder who is not a procuring power, a public enterprise or a procuring entity is obliged to:
(a) to indicate in its offer any part of the public market that it plans to subcontract and any proposed subcontractor as well as the subject matter of subcontracting contracts with third parties;
(b) to indicate any change in subcontractors during market performance;
2° a bidder or an adjudicator who is not a procuring authority, a public enterprise or a procuring entity is obliged to apply rules in respect of advertising and selection before entering into contracts of subcontracting with third parties.
For the purposes of this paragraph, companies that have grouped to obtain the market are not considered to be third parties or companies that are related to them within the meaning of Article 3, 23°.
The King sets out the other applicable subcontracting rules.
§ 3. Where the bidder and the award-winner is a procuring authority, a public enterprise or a procuring entity, the bidder shall, as the case may be, comply with the provisions of title 2 or title 3 for public procurement and contracts to be contracted with third parties.
Art. 38. For public procurements that involve, require or contain classified information, market documents specify the necessary measures and requirements to ensure the safety of such information.
The King sets out the other applicable information security rules.
Art. 39. With regard to procurement security, market documents provide that the procuring authority or public enterprise may require that the offer include:
1° certification or documents demonstrating that the bidder will be able to fulfill the obligations in the export, transfer and transit of goods related to the public market;
2° the bidder's commitment to establish or maintain the capacity necessary to deal with a possible increase in needs as a result of a crisis situation;
3° the bidder's commitment to ensure the maintenance, modernization or adaptation of supplies subject to the market;
4° the bidder's commitment to provide to the procuring authority or to the public enterprise all the specific means necessary for the production of spare parts, components, assemblies and special test equipment, in case it would no longer be able to supply these parts, components, assemblies and equipment.
The King sets out the other applicable rules for security of supply.
Section 2. - Technical specifications
Art. 40. The procuring power or public enterprise includes technical specifications in the market documents.
The King sets out other terms relating to the formulation of technical specifications, standards and technical approvals. These should be formulated:
1° or by reference to technical specifications;
2° in terms of performance or functional requirements;
3° in terms of performance or functional requirements referred to in 2° referring to the specifications referred to in 1° as a means of presumption of conformity to these performance or functional requirements;
4° is by reference to the specifications referred to in 1° for certain characteristics and to the performance or functional requirements referred to in 2° for other characteristics.
Section 3. - Social and tax obligations
Art. 41. § 1er. The contractor of a public works market is required:
1° to respect and enforce by any person acting as a subcontractor at any stage and by any person making staff available on the site, any legal, regulatory or conventional provisions for the well-being of workers during the performance of their work as well as for the general conditions of work, whether as a result of the law or parity agreements at the national, regional or local level;
2° to respect and enforce by its own subcontractors and by any person procuring staff, all legal, regulatory or treaty provisions in tax and social security matters;
3° to ensure, in the event of an employer's deficiency, the payment of the amounts due to the benefits made by this staff on the site, as compensation, social security contributions and professional pre-payment, in respect of the staff who worked or worked on the site on behalf of one of the contractors. The same applies to staff who were or is available to them or to any of their own subcontractors;
4° without prejudice to the application of § 3, paragraph 2, to ensure in the event of the employer's deficiency with respect to the personnel who have worked or worked on the site of which he or she is responsible, the payment of the sums due as compensation, by any contractor or by any person who has made staff available on that site, for the benefits made on that site.
§ 2. The supplier and service provider of a public market are required to respect and enforce by their own subcontractors and by any person providing them with personnel, any legal, regulatory or conventional provisions referred to in § 1er1° and 2°.
§ 3. Subcontractors to which they are appealed and those who make staff available for the performance of a public market are required, under the same conditions as the adjudicator, to comply with the legal, regulatory or conventional provisions referred to in § 1er, 1° and 2°, and § 2 and enforce them by their own subcontractors and by any person making staff available to them.
In public works markets, subcontractors must also ensure, under the conditions defined in § 1er, 3°, the payment of the sums due as compensation, social security and professional pre-payment for the benefits of the staff who have worked or worked on the site on behalf of one of their own subcontractors, as well as the staff at their disposal or at the disposal of one of their own subcontractors on this site.
§ 4. Staff action under § 1er, 3° and 4°, or § 3, paragraph 2, shall be preceded by the sending of a claim that must be addressed, by registered letter, to the debtor and, in any case, to the contractor, within one month of the due date of the payment. This action is prescribed by one year from the date the claim is sent.
Persons who have made the payment of sums due under § 1er, 3° and 4°, and of § 3, paragraph 2, are subrogated to the legal rights and privileges exercised over these amounts with respect to the employer. The Contractor who paid, in accordance with § 1er, 4°, also has, under the same conditions, an action in recovery against the debtor of these sums, under § 3, paragraph 2.
§ 5. Without prejudice to the application of sanctions under other legal, regulatory or treaty provisions, breaches of obligations under subsection 1er and 2 are recognized by the procuring authority and result in the application of the measures provided for in the event of a breach of the public market clauses.
Section 4. - Third party rights on claims
Art. 42. § 1er. Adjudicator receivables due in the execution of a public market may not be subject to seizure, opposition, assignment or pledge until receipt.
When the public market has a provisional reception and a final reception, the ban ends with the provisional reception of the entire market.
§ 2. With the exception of advances under section 8, paragraph 2, these receivables may be seized or subject to opposition even before receipt:
1° by the workers and employees of the contractor, supplier or service provider for their wages and surcharges, due to benefits related to the public market in question;
2° by subcontractors and contractors for sums due to the work, supplies or services they have performed for the public market in question.
§ 3. With the exception of advances referred to in Article 8, paragraph 2, receivables may also be transferred or pledged by the contractor, supplier or service provider, even before receipt, to the benefit of the funders if they are assigned to the credit guarantee or advances of money for the performance of the public market in question, provided that the use of that credit or advances is concomited
§ 4. The assignment and assignment of the receivable shall be served by the assignee to the procuring power or to the public enterprise by owner of the bailiff. The service may also be carried out by the assignee to the procuring authority or to the public enterprise by registered letter. To this end, the procuring authority or the public enterprise explicitly mentions in market documents, the administrative coordinates of the service to which this letter must be sent. To be valid, the meaning must be made at the latest at the same time as the transferee's request for payment.
The assignment of several receivables may be served by means of the same asset of a bailiff or the same recommended letter provided that these receivables relate to the same procuring power or to the same public enterprise and arise from a single public procurement contract.
§ 5. Disposals and pledges will only come out after workers, employees, subcontractors and suppliers who have made a seizure or opposition have been paid.
The amounts to be received shall not be charged by the lessor of funds, assignee or creditor, to the payment of claims on the contract, arising from other chiefs, before or during the period of execution of the works, supplies or services financed, until such work, supplies or services have been received.
§ 6. The procuring authority or the public enterprise shall notify the assignees of receivables and the beneficiaries of the claim, by registered letter to the post, of the seizures or objections that were notified to the request of the privileged creditors.
PART 3. - Markets by procuring entities
Art. 43. When contracting in the areas of defence and security, procuring entities and procuring authorities and public enterprises referred to in section 72 of the Act of 15 June 2006 are subject to the application of sections 5, 6, 11, 14 to 20, paragraphs 1er and 2, 22, paragraphs 1er and 3, 23, 24, paragraphs 1er at 3, 25, 1°, c, paragraph 1er, d, paragraph 1er, e, f and g, 2°, 3°, 4° and 5°, 27, 29, 31 to 34 and 36 to 40 of this Law.
PART 4. - Miscellaneous provisions
Art. 44. 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 deadlines, dates and terms.
Art. 45. Within the limits of its responsibilities, each Minister is competent to make decisions regarding the procurement and execution of the public procurement of the federal authority and the agencies that fall under its authority.
For persons of public law other than those referred to in paragraph 1er, powers relating to the procurement and enforcement of public contracts are exercised by the competent authorities and bodies, under the provisions of a law, decree, order, regulatory or statutory provision governing them.
The powers conferred under subparagraphs 1er and 2 may, for the competent authorities and bodies referred to in those paragraphs and under federal authority, be delegated within the limits established by the King, except where a particular legal provision regulates that delegation.
Art. 46. § 1er. The King may take the necessary measures, including the repeal, addition, modification or replacement of legal provisions, to ensure the transfer of the mandatory provisions resulting from the Treaty on the Functioning of the European Union and the international acts taken under it and concerning public markets and contracts of work, supplies and services covered by this Act.
These measures are the subject of a report submitted to the House of Representatives.
§ 2. The King may charge the Prime Minister to adapt certain amounts set out in the enforcement measures according to the revisions provided in the European directives, determining the value of the thresholds set out in these directives.
Art. 47. The King may bring the text of the organic and statutory provisions in accordance with that of this Act, for the procuring powers and public enterprises referred to in section 2, 1°, and 2° respectively, and which, under a law or order, are subject to the hierarchical authority or control of a federal minister.
Art. 48. Section 57 of the Act of 30 March 1976 on economic recovery measures does not apply to public procurement under Part 2 of this Act.
Art. 49. Royal decrees under or under this Act shall be deliberated in the Council of Ministers.
Art. 50. The King sets the date of entry into force of each of the provisions of titles 1er2, 3 and 4 of this Act.
This article and article 46 come into force on the day of their publication at the Belgian Monitor.
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 Nice, 13 August 2011.
ALBERT
By the King:
The Prime Minister,
Y. LETERME
For the Minister of Defence, absent:
Deputy Prime Minister and Minister for Foreign Affairs and Institutional Reforms,
S. VANACKERE
For the Minister of Business and Simplification, absent:
Deputy Prime Minister and Minister of Budget,
G. VANHENGEL
For the Minister of the Interior, absent:
Deputy Prime Minister and Minister of Budget,
G. VANHENGEL
State seal:
Minister of Justice,
S. DE CLERCK
____
Note
Documents of the House of Representatives:
53-1592 - 2010/2011:
001: Bill.
002: Amendment.
003: Report.
004: Text corrected by commission.
005: Text adopted in plenary and transmitted to the Senate.
Full report: 7 July 2011.
Documents of the Senate:
5-1154 - 2010/2011:
Number 1: Project referred to by the Senate.
Number two: Report.
No. 3: Decision not to amend.
Annales of the Senate: July 20, 2011.

For the consultation of the table, see image
Seen to be annexed to the Public Procurement Act of 13 August 2011 and to certain contracts of work, supplies and services in the areas of defence and security.
ALBERT
By the King:
The Prime Minister,
Y. LETERME
For the Minister of Defence, absent:
Deputy Prime Minister and Minister for Foreign Affairs and Institutional Reforms,
S. VANACKERE
For the Minister of Business and Simplification, absent:
Deputy Prime Minister and Minister of Budget,
G. VANHENGEL
For the Minister of the Interior, absent:
Deputy Prime Minister and Minister of Budget,
G. VANHENGEL

For the consultation of the table, see image
Seen to be annexed to the Public Procurement Act of 13 August 2011 and to certain contracts of work, supplies and services in the areas of defence and security.
ALBERT
By the King:
The Prime Minister,
Y. LETERME
For the Minister of Defence, absent:
Deputy Prime Minister and Minister for Foreign Affairs and Institutional Reforms,
S. VANACKERE
For the Minister of Business and Simplification, absent:
Deputy Prime Minister and Minister of Budget,
G. VANHENGEL
For the Minister of the Interior, absent:
Deputy Prime Minister and Minister of Budget,
G. VANHENGEL