Posted the: 2012-02-01 Numac: 2011021082 FEDERAL CHANCELLERY of the Prime Minister August 13 2011 PUBLIC SERVICE. -Law on public procurement and certain contracts for works, supplies and services in the fields of defence and security ALBERT II, King of the Belgians, to all, present and to come, hi.
The Chambers have adopted and we endorse the following: title 1 - General provisions and definitions Article 1.
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 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.
S. 2. for the purposes of this Act, means: 1 ° contracting authority: a) the State;
(b) local authorities;
(c) bodies governed by public law;
((d) persons, regardless of their shape and nature which, at the date of the decision to launch a market: i) have been created to meet specific needs in general interest having one character other than industrial or commercial, and ii) have legal personality, and which - either activity is funded mostly by the authorities or bodies referred to in 1 ° (((a), (b)), or c);
- or the management is subject to scrutiny by these authorities or bodies;
— more than half of the members of the administrative, management or monitoring body are designated by these authorities or bodies;
(e) the associations formed by one or more Contracting entities referred to in 1 °, a), b), c) or (d));
2 public company °: any enterprise engaged in an activity referred to in title III of the law of 15 June 2006 on public procurement and certain contracts for works, supplies and services, hereinafter referred to as the law of June 15, 2006, on which the contracting authorities may exercise directly or indirectly a dominant result of ownership, financial participation influence or the rules that govern. The dominant influence shall be presumed when these, directly or indirectly, for the undertaking:-hold the majority of the capital of the company, or - control the majority of the votes attached to shares issued by the company, or - can appoint more than half of the members governing body, direction or supervision of the company;
3 ° procuring entity: the person of private law exercising an activity referred to in title IV of the law of June 15, 2006 and benefiting from special or exclusive rights within the meaning of article 2, 3 °, of the law;
4 ° central purchasing or central markets: a contracting authority within the meaning of 1 ° or a European public body which: a) acquiring supplies or services intended for contracting authorities, public undertakings or entities contracting or b) past of public procurement, contracts or framework agreements for works, supplies or services intended for contracting authorities public companies or entities Contracting;
5 ° contractor, supplier and service provider: any person physical or moral or public entity or group of these persons or bodies which offers, respectively, the execution of works or of works, supplies or services on the market;
6 ° candidate: the contractor, supplier or service provider who submitted an application of participation for its selection in a public market or market;
7 ° application for participation: the event written and express a candidate to be selected as part of a market, a list of selected candidates or of a system of qualification;
8 ° selection: the decision of a contracting authority regarding the choice of candidates or tenderers on the basis of the right of access and the qualitative selection;
9 ° selected candidate: candidate who is chosen in the selection;
10 ° tenderer: the contractor, supplier, service provider or the selected candidate who presents a bid for a public contract or a contract;
11 ° offers: the undertaking by the tenderer to perform the contract on the basis of documents of the market and the conditions it presents;
12 ° tenderer: the bidder with whom the public market or the market is concluded.
3. for the purposes of title 2 of this Act, means: 1 ° public market: the onerous contract concluded between one or more contractors, suppliers or service providers and one or more Contracting entities or companies public and having for object the execution of works, the supply of products or the provision of services;
2 ° public works contract: a public contract having as its object either the execution, or both the design and execution of work related to one of the activities mentioned in division 45 of the common vocabulary for public contracts (CPV) or a work, or the realisation, by any means whatsoever, of a work corresponding to the requirements specified by the contracting authority or public undertaking. A "work" is the result of a set of work of building or civil engineering designed to fulfil an economic or technical function by itself;
3 ° public supplies market: public contract other than a contract of work with the object the purchase, lease, rental or hire purchase, with or without option to buy, of products.
A public contract having as object the supply of products, and ancillary, laying and installation work is considered to be a public supply contract;
4 ° procurement services: public market other than a public contract of work or supplies related to the provision of services referred to in the annexes 1 and 2 of this Act.
A public contract having as its object both the supplies and services is considered to be a public service contract where the value of the services in question exceeds that of the supplies into the public market.
A public market with to object services and having activities under division 45 of the common vocabulary for public procurement as ancillary to the main purpose of the market is considered to be a public service contract;
5 ° open procedure: the procurement process which cannot be used for markets not reaching the threshold of European advertising, in which each contractor, supplier or service provider interested can submit an offer and in which the opening of tenders is public;
6 ° restricted procedure: the procedure of procurement to which every contractor, supplier or service provider concerned may request to participate and only candidates selected by the contracting authority or public undertaking may submit a tender and attend the opening of tenders;
7 ° negotiated procedure without advertising: the procurement process in which the contracting authority, or public company consults contractors, suppliers or service providers of its choice and negotiates the terms of the public market with one or more of them;
8 ° negotiated procedure with advertising: the procurement process in which the contracting authority or public undertaking invited, after a prior advertising, applicants selected to bid, the market conditions are then negotiated. For contracts that do not reach the amount fixed for the European advertising, the King may provide that any contractor, supplier or service provider interested in can bid.
9 ° competitive dialogue: the procurement to which every contractor, supplier or provider of services concerned may request to participate and whereby the contracting authority or the public company led a dialogue with the candidates selected in this procedure, to develop one or more solutions to meet its needs and on the basis of which or which candidates will be invited to bid.
10 ° electronic auction: an iterative process according to an electronic device for presentation of new prices, revised downwards, and/or new values concerning certain elements of tenders, which occurs after an initial assessment complete offers, allowing their classification can be made on the basis of an automatic processing. Therefore, the electronic auction may not be used for certain services or work contracts relating to intellectual performances;
11 ° public promotion of work contract: public market on both the financing and execution of works and, where applicable, on any provision of services relating to them;
12 ° framework agreement: the agreement between one or more Contracting authorities or companies public and one or more contractors, suppliers or service providers, intended to establish the terms governing public contracts to be awarded during a given period, including with regard to price and, where appropriate, the quantity envisaged;
13 ° award of the public contract: the decision taken by the contracting authority or public undertaking designating the successful bidder;
conclusion of the public market: the birth of the contractual relationship between the contracting authority or the company, to the successful tenderer;
15 ° common procurement vocabulary: the reference nomenclature applicable to public contracts, adopted by the Regulation (EC) No 2195/2002, abbr. CPV;
16 ° military equipment: equipment specifically designed or adapted for military purposes, intended to be used as a weapon, ammunition or equipment of war;
17 ° sensitive equipment, sensitive works and sensitive services: equipment, works and services for security purposes which are involving, entailing and/or containing information classified;
18 ° civilian purchases: markets that are not referred to in article 15 and with the purpose of the work, supplies or non-military logistical services carried out under the conditions referred to in article 18, paragraph 2, 4 °;
19 ° classified information: any information or equipment, whatever the form, nature or mode of transmission, that 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 laws, regulations or administrative provisions in force in a Member State, requires protection against misuse destruction, removal, disclosure, loss or access by unauthorized persons, or any other type of compromise;
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 was caused, the proportions exceeding clearly those of damage of life and which substantially jeopardize the life and health of the population which have substantial property value effects or which require measures relating to the supply of the population necessities. There is also crisis when it should be considered as imminent to the occurrence of such damages. Armed conflicts and wars are the crises within the meaning of this Act;
22 ° subcontract: an onerous contract concluded between a contractor and one or more contractors, suppliers or third party service providers for the purposes of the realization of the contract in question and having for object works, the supply of products or the provision of services;
23 related company °: any company on which the successful bidder may exercise, directly or indirectly, a dominant influence, or any undertaking which can exert a dominant influence on the tenderer selected or which, as the successful bidder, is subject to the dominant influence of another undertaking by virtue of ownership, financial participation or the rules which govern.
The dominant influence is presumed when a company, directly or indirectly, with respect to another undertaking:-owns the majority of the subscribed capital of the company, or - has the majority of the votes attached to shares issued by the company, or - has the right to appoint more than half of the members of the governing body, direction or supervision of the company;
24 ° written or in writing: any set of words or figures which can be read, reproduced, then release. This set may include information transmitted and stored by electronic means;
25 ° electronic medium: a means using electronic equipment for the processing including digital compression and data storage, and using the transmitted, conveyed and received by wire, by radio, by optical means or by other electromagnetic means;
26 ° life cycle: all the successive States that may know about a product, i.e. research and development, industrial development, production, repair, modernization, modification, maintenance, logistics, training, testing, removal and disposal;
27 ° research and development: the set of activities involving basic research, applied research or experimental development, the latter may include the achievement of technological demonstrators, devices designed to demonstrate the performance of a new concept or a new technology in an environment that is relevant or representative;
28 ° the contract documents: the documents applicable to the market, including all supplementary documents and the other documents to which they refer. They include, where appropriate, the contract notice and the special specification containing the specific conditions applicable to the market and the agreement signed by the parties;
29 ° lot: subdivision of a market likely to be allocated separately, in principle for separate execution.
S. 4. for the purposes of title 3 of the present law, shall mean: 1 ° market: the contract had the same characteristics as a public market, with the exception that it is signed by one or more Contracting entities within the meaning of article 2, 3 °;
2 ° candidate, application, selection, candidate selected, bidder, bid and contract Awardee: the concepts with the same scope as defined in article 2, 6 ° to 12 °, with the exception that they are used by a contracting entity within the meaning of article 2, 3 °;
3 ° market works, supplies or services: the market reference for works, supplies or services within the meaning of article 3, 2 ° to 4 °;
4 ° restricted procedure: the procedure of procurement to which every contractor, supplier or service provider may request to participate and only candidates selected by a contracting entity within the meaning of article 2, 3 °, may submit a tender;
5 ° negotiated procedure without advertising, negotiated with advertising and competitive dialogue procedure: public procurement procedures with the same characteristics as defined in article 3, 7 °, 8 °, 9 °, with the exception that they are used by an entity within the meaning of article 2, 3 °;
6 ° electronic auction and framework agreement: the process or the agreement with the same characteristics as defined in article 3, 10 ° and 12 °, with the exception that they are used by an entity within the meaning of article 2, 3 °;
7 ° award of the contract and conclusion of the contract: the same concepts as defined in article 3, 13 ° and 14 °, with the exception that they are used by an entity within the meaning of article 2, 3 °;
8 ° common vocabulary for public procurement, military equipment, sensitive equipment, sensitive and sensitive services, civilian purchases, classified information, Government, crisis, sub-contract, company related, written or in writing, electronic means, life cycle, research and development, the contract documents and batch: the same concepts as those defined in article 3, 15 ° to 29 °.
-Of the procurement Chapter 1 - principles General s. 5. the contracting authorities and public enterprises deal with contractors, suppliers and service providers in respect of equality, in a nondiscriminatory manner and act with transparency.
S. 6. public contracts are awarded with competition, after verification of the right of access, qualitative selection and examination of the tenders of the participants, in accordance with one of the procurement procedures laid down in Chapter 4.
S. 7 § 1.
Public procurement are passed to package.
The flat rate nature of procurement shall not preclude revision of prices based on specific economic or social factors.
The review must meet the evolution of the prices of the main components of the cost price. The King lays down the procedures for the review and may make it compulsory for markets that reach certain amounts or some enforcement timeframes set by it.
If the contractor, supplier or service provider use of subcontractors, they must, if applicable, apply the revision of prices under the terms set by the King, and to the extent corresponding to the nature of the services they perform.
§ 2. Public procurement can be passed without fixed price fixing: 1 ° in exceptional cases, for works, supplies or services complex or a new technique, with important technical hazards, which force to begin execution of the benefits while all conditions for realization and obligations cannot be determined completely.
2 ° in case of extraordinary and unforeseeable circumstances, when they relate to works, supplies, or emergency services of which the nature and the conditions are difficult to define.
S. 8. a payment can be made for a service done and accepted. Are admitted as such, according to what is provided in the contract documents, supplies made for the performance of the contract and approved by the contracting authority or public undertaking.
However, advances may be granted in accordance with the conditions laid down by the King.
S. 9 § 1. Without prejudice to the application of other prohibitions resulting from a law, Decree, order, any regulatory or statutory provision it is prohibited to any official, public officer or any other person related to the contracting authority or the public company in any manner whatsoever, to intervene in a way
any, directly or indirectly, in contracting and execution of a public market as soon as it could be, either personally or by proxy, in a situation of conflict of interest with a candidate or a tenderer.
§ 2. The existence of this conflict of interest is presumed in any case: 1 ° as soon as there are kindred or affinity, direct to the third degree and, in collateral line up to the fourth degree, or legal cohabitation, between the official, public officer or the natural person referred to in paragraph 1 and one of the candidates or tenderers or any other person exercising on behalf of one of them a power of management or management;
2 ° when the official, public officer or the natural person referred to in paragraph 1 is itself or through proxy, owner, co-owner or active partner of one of the candidates or tenderers or exercises, in law or in fact, itself or through proxy, a power of management or management.
The official, public officer or the physical person in one of these situations shall recuse.
§ 3. When the official, public officer or the natural or legal person referred to in paragraph 1 holds, either itself, or by person proxy, one or more shares or shares representing at least five per cent of the capital of one of the candidates or tenderers, it has the obligation to inform the contracting authority or public undertaking.
S. 10 is prohibited any act, agreement or agreement likely to distort normal competition conditions. Requests to participate or tenders submitted following such Act, convention or agreement must be set aside.
If such an Act, convention or agreement has resulted in the conclusion of a public contract, the contracting authority or public undertaking applies the measures provided for in the event of breach of the provisions of the said market, unless it provides otherwise by reasoned decision.
S. 11. the King lays down the rules applicable to the means of communication between the contracting authorities and public enterprises and contractors, suppliers and service providers. The means of communication chosen must be generally available and cannot have the effect of restricting access to the procurement process.
S. 12. the contracting authority or public undertaking shall not disclose, subject to the rights acquired by contract, the information as contractors, suppliers and service providers shall notify on a confidential basis. This information includes particular technical or business secrets and the confidential aspects of tenders.
The contracting authority or public undertaking may impose requirements with a view to protecting the confidential nature of the information it gives to candidates and tenderers.
In any event, whatever the circumstances, candidates, applicants and third parties have no access to documents relating to the procedure of procurement as long as the contracting authority or public undertaking took no decision, as appropriate, regarding the selection of candidates, regularity of tenders, of the award of contract or waiver to continue the procedure.
CHAPTER 2. -Scope art. 13 when public contracts in the fields of defence and security, the authorities and public undertakings, when the latter carrying out an activity referred to in title III of the Act of June 15, 2006, are subject to the application of this Act.
S. 14. a contracting authority or public undertaking which uses a central purchasing or markets such as defined in article 2, 4 °, is exempt from the obligation to organize itself a procurement procedure.
When the Central is a European public body, a contracting authority or a public undertaking benefits from same exemption provided that: 1 ° this organization enforces contracting rules in conformity with all the provisions of Directive 2009/81/EC, and that 2 ° contracts awarded can be subject to effective remedies comparable to those provided for in this directive.
S. 15. this Act shall apply to public contracts awarded in the fields of defence and security with the object: 1 ° the provision of military equipment, including their spare parts, components and/or subassemblies;
2 ° the provision of sensitive equipment, including their spare parts, components and/or subassemblies;
3 ° of the works, supplies and services directly related to equipment referred to in 1 ° and 2 ° for all or part of its life cycle;
4 ° of the work and services intended for purposes specifically military or work and sensitive 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.
16. a public contract having as its object of the work, supplies or services falling within the scope of this Act and partly within the scope of Act of 15 June 2006 on public procurement and some work, supplies and services markets is passed pursuant to this Act, provided that the single public procurement is justified by objective reasons.
A public market to object of the work, supplies or services in part within the scope of application of this Act, and to the other party under this Act, or the Act of June 15, 2006, does not fall within the application of this Act, subject to the single public procurement is justified by objective reasons.
However, the decision to spend a single procurement may be taken in order to subtract from the markets to the application of this Act or the Act of June 15, 2006.
CHAPTER 3. -Exclusions s.
17. None of the rules, procedures or provisions, none of the programs and procurement covered by this chapter may not be used for the purpose of evading the provisions of this Act.
S. 18 § 1. This Act does not apply to public contracts governed by: 1 ° the specific rules of procedure in application of an agreement or an international agreement, concluded between one or more Member States and one or more third countries;
2 ° the rules of specific procedures in application of an agreement or an international agreement concluded in the stationing of troops and concerning undertakings of a Member State or a third country;
3 ° rules of specific procedures of an international organization buying for the fulfilment of its tasks, or to markets that must be allocated by a Member State in accordance with said rules.
§ 2. This Act does not apply: 1 ° to procurement for which the application of the rules of this Act would oblige a Member State to provide information which it considers the disclosure contrary to the essential interests of its security;
2 ° to the public markets intelligence activities;
3 ° to public contracts awarded in the context of a cooperation program based on research and development, conducted jointly by at least two Member States for the development of a new product and, where appropriate, to subsequent phases of all or part of the life of this product cycle. At the conclusion of such a program of cooperation between some Member States only, the latter shall notify the Commission European share of expenditure on research and development compared to the overall cost of the program, the agreement on the sharing of costs as well as the portion proposed for purchase for each Member State, where appropriate;
4 ° to public contracts awarded in a third country, including for civilian purchases, made when forces are deployed outside the territory of the Union, when business needs require that they are concluded with contractors, suppliers or service providers local implanted in the area of operations;
5 ° to the procurement of services relating to the acquisition or rental, regardless of the financial terms, of land, existing buildings or other immovable property or concerning rights thereon;
6 ° to public contracts awarded by one Government to another Government concerning: a) the provision of military equipment or sensitive equipment.
(b) works and services directly related to such equipment, or c) work and services intended for specifically military or work and sensitive services;
7 ° to public contracts for arbitration and conciliation services;
8 ° to public contracts concerning financial services, with the exception of insurance services;
9 ° to employment contracts;
10 ° to research services and development. The Act is applicable to public procurement which fruits belong exclusively to the contracting authority or the public company for its use in the exercise of its own activity and the provision of the service is wholly remunerated by the contracting authority or public undertaking.
CHAPTER 4. -Procedures for the award Section 1st. -Advertising art. 19. unless otherwise provided for in this Act and without prejudice to the European advertising from some
amounts, public contracts are subject to a publicity, which the King lays down the procedures.
The publication in the Bulletin of auctions is free provided that the data be entered by means of electronic online entry or data transfers between systems which allow automated and structured disclosure.
Section 2. -Right of access and qualitative selection art.
20. the King lays down the rules on the right of access as well as those relating to the qualitative selection of candidates and tenderers.
Except imperative general interest requirements, is excluded from participation in any public market any candidate or tenderer who has made the subject of a conviction by a court decision having the force of res judicata which the contracting authority or public undertaking has knowledge for participation in a criminal organisation, corruption, fraud or money laundering capital, terrorist offences or offences related to terrorist activities or incentive help, complicity or attempt to commit such offences. The King may derogate from this principle for small market less than an amount to be fixed.
The King rule the consequences on the offer made by a natural person in the case of the substitution of that person by a legal person in the course of the procedure. It may impose on such persons a joint and several liability.
21. the contractors, suppliers and service providers from third countries to the Union European are allowed to file a request or an offer in accordance with this title if they can rely on an international treaty to this end, an act of an international institution, within the limits and conditions laid down by the Act in question.
The contract notice or, in his absence, another document from the market, can provide a wider provision.
Section 3. -Modes of procurement sub-section 1. -Award, call for tenders and negotiated procedure with advertising art. 22. public contracts shall be awarded by restricted procedure either by restricted tendering, restricted tendering or negotiated procedure with publicity.
Public procurement may be awarded by open procedure, either by open tender, open, tender if their amount is less than the amounts set out for European advertising.
The King shall determine the Organization of these modes of tendering. It may refer to specific rules of procurement the procurement to which applies article 346, 1, (b), of the Treaty on the functioning of the European Union.
S. 23. where the contracting authority or public undertaking decides to spend the procurement by invitation to tender, it shall be awarded to the tenderer who submitted the lowest regular offer, under penalty of a lump sum fixed at ten percent of the amount, excluding tax on the added value of this offer. This lump sum is eventually completed compensation to repair all of the damage, when it results from an act of corruption within the meaning of article 2 of the civil law Convention on corruption, done at Strasbourg on 4 November 1999.
For the determination of the lowest regular tender, the contracting authority or public undertaking takes into account the prices offered and other quantifiable elements that will come, in a certain way, increase its disbursements.
S. 24. where the contracting authority or public undertaking decides to award the public contract by tender, it must be awarded to the bidder who gave regular economically the most advantageous from the point of view of the contracting authority or public undertaking, taking account of the criteria.
The award criteria shall be indicated in the contract notice or in any other document of the market.
These criteria must relate to the subject of the contract and allow a comparison objective offers on the basis of a value judgment. The criteria are, for example, quality, price, technical merit, aesthetic and functional characteristics environmental characteristics, running costs, costs to along the life cycle, profitability, after-sales service and technical assistance, delivery date and time of delivery or execution, spare parts guarantees, security of supply interoperability and operational characteristics.
For public contracts up to the amount fixed for the European advertising, the contracting authority or the accurate public company the relative weighting of each of the award criteria, it may be expressed in a range including the maximum deviation must be appropriate. If a such weighting is not possible for demonstrable reasons, the criteria are mentioned in a descending order of importance.
For public contracts does not reach the amount, the contracting authority or public company specifies either their such relative weighting provided for in the preceding paragraph, or their decreasing order of importance. Otherwise, the award criteria have the same value.
Sub-section 2. -Negotiated procedure art. 25. it cannot be processed by procedure negotiated without advertising, but if possible after consultation with several contractors, suppliers or service providers, only in the following cases: 1 ° in the case of a procurement of works, supplies or services: has) when the expenditure to approve for a procurement does not exceed excluding value added tax the amounts fixed by the King;
(b) when the exception of article 346 of the Treaty on the functioning of the European Union is invoked.
This exception can only be invoked if this can be justified for reasons of public safety or is necessary for the protection of the essential interests of security of one or more Member States;
(c) where any application or request for appropriate involvement or no tenders or no suitable offer was filed in response to a restricted procedure, the negotiated procedure with advertising or a competitive dialogue insofar as the original terms of the contract are not substantially altered and that a report is communicated to the Commission European in its application.
This provision shall also apply when the first procedure is a procedure open to a public market does not reach the amount fixed for the European advertising within the meaning of article 22, paragraph 2;
(d) when only of irregular tenders or unacceptable offers were filed in response to a restricted procedure, negotiated procedure with advertising or a competitive dialogue, provided that the contracting authority or public undertaking consults all bidders who meet the requirements for qualitative selection and presented formally regular during the first procedure offers and that the original terms of the procurement are not substantially altered.
This provision shall also apply when the first procedure is a procedure open to a public market does not reach the amount fixed for the European advertising within the meaning of article 22, paragraph 2.
When the first procedure has been subject to European advertising, only bidders meet the above conditions and requirements can be viewed.
When the first procedure has not necessarily subject to advertising European, the contracting authority or public undertaking may, to expand competition, consult also contractors, suppliers or service providers which, according to him, can respond to the right of access and qualitative selection requirements, regardless of whether they have given an offer in the first proceedings;
(e) where the emergency resulting from a crisis is not compatible with the deadlines required by restricted procedure or the negotiated procedure with advertising, including reduced time limits fixed by the King;
(f) to the extent strictly necessary, when the extreme urgency resulting from unforeseen to the contracting authority or public enterprise is not compatible with the deadlines required by restricted procedure or the negotiated procedure with advertising, including reduced time limits fixed by the King. The circumstances invoked to justify extreme urgency must not be attributable to the contracting authority or public company;
(g) where, for technical reasons or connected with protection of exclusive rights, the procurement cannot be entrusted to a contractor, supplier or service provider;
2 ° in the case of a procurement of supplies or services: a) for the research and development services not excluded under article 18, paragraph 2, 10 °;
(b) for products manufactured only for purposes of research and development, with the exception of the production in quantities to establish the commercial viability of the product or to amortize the costs of research and development;
3 ° in the case of a procurement of supplies: has) when additional deliveries are to be made by the original supplier are intended either as part replacement supplies or common use facilities, or as the extension of supplies or existing installations, where a change of supplier would oblige the contracting authority or public undertaking to acquire
material having different technical result in incompatibility or disproportionate technical difficulties of use and maintenance.
The duration of these contracts, as well as recurring contracts may not exceed five years, except in exceptional circumstances determined taking account of the expected service life of objects, installations or delivered systems, as well as technical difficulties that may result in a change of supplier;
(b) when it comes to supplies quoted and purchased on a stock exchange of raw materials;
(c) when supplies purchased on particularly advantageous terms, either a supplier definitively winding up its business activities, or from the curators, responsible agents of a transfer under authority of justice or liquidators of a bankruptcy, judicial reorganization or a similar procedure nature laid down by the national laws or regulations;
4 ° in the case of a procurement of works and services: has) when work or additional services not included in the project initially considered or in the initial contract have become necessary through unforeseen circumstances, execution of works or services as they are described therein, on condition that the award is made to the contractor or service provider who performs such work or services ((: i) when such additional works or services cannot be technically or economically separated from the initial contract without major inconvenience to the contracting authority or public undertaking, or ii) when such works or services, although separable from the performance of the initial contract, are strictly necessary for its completion.
For contracts up to the amount fixed for European advertising, the cumulative amount of contracts awarded for additional services or works shall not exceed fifty per cent of the amount of the initial contract;
(b) for work or new services consisting in the repetition of work or similar services entrusted to the successful tenderer for the initial contract by the same Contracting Authority or the same public undertaking, provided that such works or services conform to a basic project and that the project has an initial market awarded by restricted procedure by procedure negotiated with advertising or a competitive dialogue. The possibility of using this procedure is indicated as soon as the first market competition.
The decision to repetitive procurement must also be within five years after the conclusion of the original contract, except in exceptional circumstances determined taking into account the lifetime of objects, plants, or systems supplied, as well as technical difficulties that may result in a change of contractor.
This provision shall also apply when the first procedure is a procedure open to a public market does not reach the amount fixed for the European advertising within the meaning of article 22, paragraph 2;
5 ° for contracts related to the provision of services by sea and air for the armed forces or the security forces of a Member State, that are or will be deployed abroad, when the contracting authority or public undertaking must obtain these services from providers that guarantee the validity of their offer only for the very short periods to ensure that the time limits applicable to the restricted procedure or the negotiated procedure with advertising including reduced deadlines set by the King, cannot be respected.
S. 26. in the case of a negotiated procedure with or without advertising, the contracting authority or public undertaking ensures equal treatment of all bidders. In particular, it gives no information discriminatory, likely to advantage certain bidders. The King fixed the other provisions of the negotiated procedure without advertising.
Sub-section 3. -Dialogue competitive art. 27. the contracting authority or public undertaking cannot resort to the the competitive dialogue procedure in the case of a particularly complex market, when it: 1 ° is not objectively able to define the technical means capable of satisfying their needs or of assessing what the market can offer in terms of technical, financial and legal solutions, and 2 ° believes that recourse to the open or restricted procedure will not allow to move the market.
The King sets the rules to be followed during a competitive dialogue. They require including:-equal treatment of all participants in the dialogue;
-non-disclosure to the participants of the solutions proposed or other confidential information communicated by a participant in the dialogue without the latter's agreement.
Subsection 4. -Markets and specific or additional procedures art.
28. a contracting authority or public undertaking may use a procurement contract for the promotion of work under the conditions laid down by the King.
These conditions impose inter alia:-the establishment of contractual guarantees that may be required of the proponent;
-the obligation of the proponent to ensure fully the responsibilities borne by the contractor by application of articles 1792 and 2270 of the civil Code;
-the obligation of the promoter, to meet the requirements of the legislation organizing the approval of contractors is to employ contractors meet these obligations, as he personally directed the work or not.
Insofar as it is necessary for the Organization and management of the market to promote the King is empowered to derogate from the laws of January 10, 1824 on the right of emphyteusis and the right when it fixes the above requirements.
S. 29. in restricted procedure or negotiated procedure with advertising or, where appropriate, in open procedure, a contracting authority or public undertaking may precede the award of contracts for supplies and services of an electronic auction provided that the public contract specifications can be established with precision.
Under the same conditions, an electronic auction may be used when the reopening of competition of the parties to a framework agreement, as well as for contracts awarded in the context of a dynamic purchasing system.
It may be used electronic auctions in an abusive manner so as to prevent, restrict or distort competition or to change the subject of the contract.
The King lays down the conditions in which an electronic auction may be used.
S. 30. a contracting authority or public undertaking may conclude framework agreements.
The choice of the parties to the framework agreement so that the allocation of public contracts based on that agreement shall be on the basis of the same criteria.
For the award of public contracts based on a framework agreement, no substantial changes can be made to the terms already laid down in the framework agreement.
The duration of a framework agreement may not exceed seven years, except in exceptional circumstances determined taking account of the expected service life of objects, installations or delivered systems, as well as technical difficulties that may result in a change of supplier.
It can only be resorted to framework agreements improperly or to prevent, restrict or distort competition.
The King lays down the conditions governing the framework agreement.
Subsection 5. -Provisions Commons article 31. the completion of a procedure does not imply the obligation to assign or to conclude the public market. The contracting authority or public undertaking may renounce assign or to conclude the procurement, or redo the procedure as an alternative.
S. 32. a public market can be divided into several batches.
In this case, the contracting authority or public undertaking has the right to only assign some and, possibly, decide that the other lots will be subject to one or more new procurement, necessary according to another mode.
S. 33 § 1. When the contracting authority or public undertaking demonstrates the need, it can resort to a public market split into one or more closed bands and one or several conditional slices. The conclusion of the door market on the whole public market but commits the contracting authority or public undertaking than for closed groups. Every conditional execution is subject to its decision brought to the knowledge of the purchaser as laid down in the documents of the relevant market.
§ 2. Upon its conclusion, a public market may contain one or more renewals, to be mentioned in the contract documents. The total time, including renewals, may as a general rule exceed four years from the conclusion of the contract.
S. 34. in the case of market joint account different contracting authorities or public undertakings and, where appropriate, persons in private law, interested persons designate the authority or the body that will take place, their collective name, quality power contracting. The contract documents may provide a separate payment for each of these people.
CHAPTER 5. -Conditions of implementation Section 1. -General rules for performance art. 35. the King fixed the General implementing rules for public procurement.
It may refer to specific implementing rules the
procurement to which applies article 346, 1, (b), of the Treaty on the functioning of the European Union.
36. in compliance 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 listed in the contract documents, the contracting authority or the public company may impose conditions of execution to take account of goals such as: 1 ° the implementation of vocational training for the unemployed or young people;
2 ° the promotion of the policy of equal opportunities to employment of persons who are not sufficiently integrated in the professional circuit;
3 ° the fight against unemployment;
4 ° the obligation to respect, in substance, the provisions of the fundamental conventions of the International Labour Organization, in the event where they have not already been implemented in the national law of the country of production;
5 ° the protection of the environment.
S. 37 § 1.
The bidder or the contractor who is not a contracting authority is free to choose its subcontractors for outsourcing contracts not covered by the provisions of paragraph 2, 2 °. It cannot be required of him that it behaves in a discriminatory manner against potential subcontractors, including nationality.
§ 2. The contract documents may in particular stipulate that: 1 ° the bidder which is not a contracting authority, a public corporation or a procuring entity is obliged: a) to indicate in his tender any part of the procurement that it intends to outsource and any subcontractor proposed as well as the subject of subcontracts with third parties.
(b) to indicate any change in the level of subcontractors during performance of the contract;
2 ° the bidder or the contractor that is not a contracting authority, a public company, or a contracting entity is obliged to apply rules on advertising and selection before entering into subcontract with third parties.
For the purposes of this paragraph, are considered as third parties companies that have been formed to obtain market or undertakings related to them within the meaning of article 3, 23 °.
The King lays down other rules on subcontracting.
§ 3. When the tenderer and the winning bidder is a contracting authority, a public company or a procuring entity, it respects, as appropriate, the provisions of title 2 or title 3 for public procurement and contracts to be awarded with the third party.
S. 38. for public contracts which involve, require or involve classified information the contract documents specify the measures and requirements necessary to ensure the security of this information.
The King fixed the other rules on information security.
S. 39. in the area of security of supply, the contract documents provide that the contracting authority or public undertaking may require that the offer includes the following: 1 ° the certification or documents demonstrating that the bidder will be able to meet the requirements for export, transfer and transit of goods related to the public market.
2 ° the undertaking by the tenderer to implement or maintain the capabilities required to deal with a possible increase of the needs as a result of a crisis situation;
3 ° the undertaking by the tenderer to ensure the maintenance, modernization, or adaptations of supplies subject to the market;
4 ° the undertaking by the tenderer to provide to the contracting authority or public enterprise all specific means necessary for the production of spare parts, components, assemblies, and equipment of special tests, in the case where it would be more able to provide these parts, components, assemblies and equipment.
The King fixed the other applicable rules concerning security of supply.
Section 2. -Specifications techniques art.
40. the contracting authority or public undertaking includes the technical specifications in the contract documents.
The King sets other arrangements relating to the formulation of technical specifications, standards and technical approvals. They should be formulated: 1 ° either by reference to technical specifications;
2 ° either in terms of performance or functional requirements;
3 ° or in terms of performance or functional requirements as referred to in 2 ° referring to the specifications referred to in 1 ° as a means of presuming conformity with such performance or functional requirements;
4 ° or by a reference to the specifications referred to in 1 ° for certain characteristics and performance or functional requirements referred to 2 ° for other characteristics.
Section 3. -Social obligations and tax s. 41 § 1. The contractor of a public works contract is required: 1 ° to respect and to enforce by any person acting as subcontractor at any stage whatsoever and by any person making staff available on the site, all legal, regulatory or contractual both welfare provisions of workers during the performance of their work as regards the General conditions of work that due to the law or collective agreements on the national, regional or local level;
2 ° to respect and enforce its own subcontractors and any person providing staff, all legal, regulatory or contractual provisions in tax and social security;
3 ° to ensure, in the absence of the employer, the staff who have worked or working on the site on behalf of one of its subcontractors, payment of the amounts due for the services performed by this staff on-site, remuneration, social security contributions and withholding tax. It is similarly to the staff who was or is put at its disposal or disposition of one of its own subcontractors;
4 ° without prejudice to the application of § 3, paragraph 2, in the absence of the employer in respect of staff having worked or working on the site which it has responsibility, payment of the sums due as compensation, by any subcontractor or by any person having put staff available on this portal, for services provided on it.
§ 2. The provider and the provider of a public contract are obliged to respect and to ensure respect by their own subcontractors and any person providing staff, all legal, regulatory or contractual provisions referred to the § 1, 1 ° and 2 °.
§ 3. Subcontractors to which is made appeal and those who put staff at disposal for the performance of a public contract are required, under the same conditions as the contract awardee to comply with legal, regulatory or contractual referred to the § 1, 1 ° and 2 °, and § 2 and enforce them by their own subcontractors and anyone putting personnel at their disposal.
In public works contracts, subcontractors must also ensure, in the conditions defined in the § 1, 3 °, the payment of the amounts due to title of remuneration, social security and withholding for the services of the staff who have worked or working on the site on behalf of one of their own subcontractors, as well as the staff put at their disposal or disposition of one of their own subcontractors on this project.
§ 4. The action of the staff by virtue of § 1, 3 ° and 4 °, or § 3, paragraph 2, must be preceded by sending a claim that should be sent, by registered letter, to the debtor and, in all cases, to the contractor, within a period of one month from the date of the chargeability of the remuneration. This action is prescribed by one year from the date of the sending of the claim.
People who have made the payment of sums due by virtue of § 1, 3 ° and 4 °, and § 3, paragraph 2, are subrogées to the rights and legal privileges on these sums, with respect to the employer. The contractor who has paid, in accordance with the § 1, 4 °, has Furthermore, in the same conditions, an action for recovery against the debtor of such sums, pursuant to § 3, paragraph 2.
§ 5. Without prejudice to the application of the penalties provided for by other provisions legal, regulatory or contractual, breaches of the obligations referred to in paragraphs 1 and 2 are found by the contracting authority and give rise to the application of the measures provided for in the event of breach of the terms of the public contract.
Section 4. -Rights of third parties on the article claims
42 § 1. Debts owed contractors in a public contract may be subject to seizure, objection, an assignment or a pawning to the reception.
When the procurement involves a provisional acceptance and final acceptance, the prohibition ends at provisional acceptance of the whole of the market.
§ 2. With the exception of advances provided for in article 8, paragraph 2, such claims may be seized or subject to an opposition even before the reception: 1 ° by the workers and the employees of the contractor,
provider or the provider of services for their wages and salaries, due for services relating to the procurement in question;
2 ° by subcontractors and suppliers of the successful tenderer for sums due at the rate of the work, supplies or services they have performed for the public contract in question.
§ 3. With the exception of the advances referred to in article 8, paragraph 2, claims may also be transferred or pledged by the contractor, the provider or the provider of services, even before the reception, for the benefit of donors if they are assigned to the guarantee credit or advances of money to carry out the procurement in question provided that the use of this credit or these advances is concomitant or subsequent to the meaning of these assignments or layouts gage.
§ 4. The assignment and pledging of the claim are served by the transferee to the contracting authority or public business by usher feat.
The service may also be effected by the transferee to the contracting authority or to the company by registered letter. To this end, the contracting authority or public undertaking mentioned explicitly in the contract documents, administrative details of the service to which this letter should be sent. To be valid, the meaning must be carried out no later than at the same time as demand payment of the assignee.
Assignment of multiple receivables may be served through the same feat usher or the same registered letter provided that such claims relate to the same Contracting Authority or to the public enterprise due to a single procurement concluded.
§ 5. Assignments and gage layouts will get out their effects only after workers, employees, subcontractors and suppliers a garnishment or opposition, have been paid.
Money to come in can be utilised by the lessor of funds, assignee or pledgee, coverage of claims on the successful tenderer, born of other leaders, before or during the execution time works, supplies or services financed, as long as such work, supplies or services have been received.
The contracting authority or public undertaking made known the assignees of receivables and the beneficiaries of the pledge thereof, by registered mail, garnishments or objections which have been notified to it at the request of the creditors.
TITLE 3. -Contracts entered into by the entities art. 43 when they pass on the market in the fields of defence and security, contracting entities and contracting authorities and public undertakings referred to in article 72 of the law of June 15, 2006 are subject to the application of articles 5, 6, 11, 14-20, paragraphs 1 and 2, 22, paragraphs 1 and 3, 23, 24 , paragraphs 1 to 3, 25, 1 °, c, paragraph 1, d, paragraph 1, e, f and g, 2 °, 3 °, 4 ° and 5 °, 27, 29, 31 to 34 and 36 to 40 of this Act.
TITLE 4. -Provisions various arts. 44. the calculation of the time limits laid down in this Act is carried out in accordance with Regulation (EEC, Euratom) no 1182/71 of 3 June 1971 determining the rules applicable to periods, dates and terms.
S. 45. within the limits of its powers, each Minister is competent to take decisions on procurement and implementation of public procurement the federal authority and the agencies that report to his authority.
For persons governed by public law other than those referred to in paragraph 1, authority for the procurement and implementation of public procurement shall be exercised by the authorities and competent bodies under the provisions of a law, a decree, order, of a statutory or regulatory provision governing.
The powers conferred under paragraphs 1 and 2 may, the authorities and bodies referred to such paragraphs within the federal authority, be delegated within the limits set by the King, and except when a particular statutory rule this delegation.
S. 46 § 1. The King may take the necessary measures, including the repeal, the addition, modification or replacement of legal provisions, to ensure the transposition of the mandatory provisions resulting from the Treaty on the functioning of the European Union and the international acts adopted pursuant thereto and concerning public contracts and works contracts, supplies and services covered by this Act.
These measures are the object of a report submitted to the House of representatives.
§ 2. The King may instruct the Prime Minister to adapt certain amounts laid down in implementing measures based on the revisions provided for in the directives, determining the value of the thresholds in these guidelines.
S. 47. the King can put the text of the organic and statutory provisions in accordance with this Act, for the contracting authorities and public undertakings referred to in article 2, 1 ° and 2 °, and falling under an act or an order, hierarchical authority or the control of a federal Minister.
S. 48. article 57 of the Act of 30 March 1976 relating to measures of economic recovery applies not to the procurement under Title 2 of this Act.
S. 49. the Royal Decrees taken in execution or application of this Act are deliberate in Council of Ministers.
S. 50. the King fixed the date of the entry into force of each of the provisions of titles 1, 2, 3 and 4 of this Act.
This section and section 46 come into force the day of their publication in the Moniteur belge.
Promulgate this Act, order that it self under the seal of the State and published by le Moniteur.
Given to Nice, August 13, 2011.
ALBERT by the King: the Prime Minister, Y. LETERME to the Minister of defence, absent: the Deputy Prime Minister and Minister of Foreign Affairs and institutional reform, S. VANACKERE for the Minister of enterprise and Simplification, absent: the Deputy Prime Minister and Minister of Budget, G. VANHENGEL for the Minister of the Interior, absent: the Deputy Prime Minister and Minister of Budget , G. VANHENGEL seal seal of the State: the Minister of Justice, S. DE CLERCK _ Note records of the House of representatives: 53-1592-2010/2011: 001: Bill.
004: Text corrected by the commission.
005: Text adopted in plenary meeting and transmitted to the Senate.
Full report: July 7, 2011.
The Senate documents: 5-1154-2010/2011: No. 1: project referred by the Senate.
No. 2: report.
No. 3: Decision not to amend.
Annals of the Senate: July 20, 2011.
For consultation table, see image to be annexed to the Act of August 13, 2011 some market works, supplies and services and public procurement in the fields of defence and security.
ALBERT by the King: the Prime Minister, Y. LETERME to the Minister of defence, absent: the Deputy Prime Minister and Minister of Foreign Affairs and institutional reform, S. VANACKERE for the Minister of enterprise and Simplification, absent: the Deputy Prime Minister and Minister of Budget, G. VANHENGEL for the Minister of the Interior, absent: the Deputy Prime Minister and Minister of Budget , G. VANHENGEL for consultation of the table, see image to be annexed to the Act of August 13, 2011 some market works, supplies and services and public procurement in the fields of defence and security.
ALBERT by the King: the Prime Minister, Y. LETERME to the Minister of defence, absent: the Deputy Prime Minister and Minister of Foreign Affairs and institutional reform, S. VANACKERE for the Minister of enterprise and Simplification, absent: the Deputy Prime Minister and Minister of Budget, G. VANHENGEL for the Minister of the Interior, absent: the Deputy Prime Minister and Minister of Budget G. VANHENGEL