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15 JUIN 2006. - Public Procurement Act and certain contracts for work, supplies and services (1)

ALBERT II, King of the Belgians,
To all, present and to come, Hi.
The Chambers adopted and We sanction the following:
PART I^er. - General provisions and definitions
Article 1^er. This Act regulates a matter referred to in Article 78 of the Constitution.
It transposes Directive 2004/17/EC of 31 March 2004 on the coordination of procurement procedures in the water, energy, transport and postal services sectors and Directive 2004/18/EC of 31 March 2004 on the coordination of procurement procedures for public works, supplies and services.
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:
- have been created to meet specific needs of general interest other than industrial or commercial, and
- have a legal personality, and
of which
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 company carrying on an activity under Title III of this Act on which the procuring authorities may directly or indirectly exert a dominant influence as a result of the ownership, 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;
3rd procuring entity: the person of private law engaged in an activity under title IV and enjoying special or exclusive rights. Special or exclusive rights shall be the rights granted by the competent authority through any legislative, regulatory or administrative provisions that have the effect of making a reservation to one or more entities for the exercise of an activity referred to in this title and substantially affecting the capacity of other entities to carry out this activity;
4° purchasing center or market center: a procuring power within the meaning of 1° that:
- acquires supplies or services for procuring authorities, public enterprises or procuring entities or
- passing public procurement or entering into 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.
Art. 3. For the purposes of this Act:
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 labour market: the purpose of the public market is to either perform, or jointly design and perform work related to one of the activities listed in Appendix I^re of this Act or of a work, by any means, the realization of 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: the public market other than a public contract of works intended for purchase, leasing, leasing or sale, with or without purchase option, of products.
A public market for the supply of products and, as an accessory, installation and installation work is considered a public procurement of supplies;
4° public service market: the public contract other than a public contract of work or supplies, covering the provision of services referred to in Schedule II to this Act.
A public market with the purpose of both supplies and services referred to in Schedule II to this Act is considered a public service market where the value of the services in question exceeds that of supplies incorporated in the market.
A public market with the purpose of the services referred to in Schedule II to this Act and not comprising activities referred to in Schedule I^re of this Act that as an accessory to the principal object of the market is considered to be a public service market;
5° open procedure: the procurement procedure 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 a 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 power or public enterprise consults contractors, suppliers or service providers of its choice and negotiates the market conditions with one or more of them;
8° procedure negotiated with advertising: the procedure with the same characteristics as that defined in the 7°, except that an advertisement must be organized;
9° Competitive dialogue: the procurement procedure to which any contractor, supplier or service provider may request participation and in which the procuring authority conducts a dialogue with the candidates selected for this procedure, with a view to developing one or more suitable solutions to its needs and on the basis of which or where the successful candidates will be invited to submit an offer;
10° project competition: the procedure that allows the procuring authority or public enterprise to acquire a plan or project that is chosen by a jury after competition;
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° concession of public works: the contract with the same characteristics as a public contract of work, except that the consideration of the work consists of either in the right to exploit the work or in that right with a price;
13° dynamic acquisition system: the fully electronic process for the acquisition of common-use supplies and services, the characteristics of which are generally available on the market meet the requirements of the procuring power or public enterprise, limited in time and open for its duration to any supplier and service provider meeting the selection criteria and having submitted an indicative offer in accordance with the special specifications;
14° electronic auction: the iterative process, applicable to supplies and services of current use, according to an electronic device for introducing new prices, reduced or new values for certain elements of the offers, which comes after a first complete evaluation of the offers, allowing their classification to be made on the basis of automatic processing;
15° framework agreement: the agreement between one or more procuring authorities or public enterprises and one or more contractors, suppliers or service providers whose purpose is to establish the terms governing the contracts to be made during a given period, in particular with respect to prices and, where applicable, the quantities envisaged.
Art. 4. For the purposes of title IV of the Act, the following means:
1st contract: the contract with the same characteristics as a public market, except that it is entered into by a procuring entity within the meaning of Article 2, 3°;
2° contract of work, supplies or services: the market for work, supplies or services within the meaning of Article 3, 2° to 4°;
3° open procedure: the procurement procedure in which any contractor, supplier or service provider may offer an offer;
4° restricted procedure: the procurement procedure in which a contractor, supplier or service provider may request participation and in which only the candidates selected by the procuring entity within the meaning of section 2, 3°, may offer an offer;
5° procedure negotiated without advertising, procedure negotiated with advertising and project competitions: the procurement procedures having the same characteristics as those defined in Article 3, 7°, 8° and 10°, except that they are launched by a procuring entity within the meaning of Article 2, 3°;
6° dynamic acquisition system, work concession, electronic auction and framework agreement: the processes or agreement having the same characteristics as those defined in Article 3, 12° to 15°, except that it is used by a procuring entity within the meaning of Article 2, 3°.
PART II. - Public procurement
CHAPTER I^er. - General principles
Art. 5. The procuring authorities treat contractors, suppliers and service providers in a manner that is non-discriminatory and act with transparency.
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 IV.
Art. 6. § 1^er. Public markets have gone through.
The lump-sum nature of public procurement is not an obstacle to the revision of prices on the basis of specific economic or social factors, provided that such revision is provided in the special terms of reference or in the contract.
The revision must meet the evolution of prices of the main components of the cost of return, in terms to be fixed by the King.
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. 7. A payment can only be made for a service done and accepted. In this capacity, depending on the contract, the procurements constituted for the performance of the contract and approved by the procuring authority.
However, advances may be granted under the conditions established by the King.
Art. 8. § 1^er. Without prejudice to the application of 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 a procuring power in any way, to intervene in any way, directly or indirectly, in the transfer and execution of a public market as soon as it may be found,
§ 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 employee, the public officer or the physical person referred to in § 1^er 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 § 1^er 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 § 1^er holds, either itself or by interposed person, one or more shares or shares representing at least five percent of the social capital of one of the candidate or bidder companies, it has the obligation to inform the procuring power.
Art. 9. 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 shall apply the measures provided for in the event of breach of the terms of the contract, unless otherwise provided by reasoned decision.
Art. 10. The King sets the rules for means of communication between procuring authorities and contractors, suppliers and service providers. The chosen means of communication must be generally available and cannot restrict access to the procurement procedure.
Art. 11. The procuring authority and any person who, as a result of his or her duties or missions, is aware of confidential market information or that relates to procurement and performance of the contract, communicated by candidates, bidders, contractors, suppliers or service providers, do not disclose any such information. This information includes technical or commercial secrets and confidential aspects of offers.
In the case of an appeal procedure, the proceeding and the procuring authority shall ensure that the information referred to in the preceding paragraph is confidential.
In any event, candidates, bidders and third parties have no access to the documents relating to the procurement procedure as long as the procuring authority 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 II. - Scope of application for persons
Art. 12. The procuring powers defined in Article 2, 1° shall be subject to the application of this title.
A non-limitative list of the public law bodies concerned and persons referred to in Article 2, 1°, (c), and (d), is established by the King.
Art. 13. The King may make the provisions of this Act or some of them applicable to persons of private law who do not meet the requirements of section 2, 1°, (d), and who pass contracts of work or services subsidized by the procuring powers referred to in section 12.
Art. 14. When a procuring authority gives an entity other than such a procuring authority special or exclusive rights to engage in a public service activity, the act by which these rights are granted provides that the entity concerned shall, for the procurement of supplies that it passes with third parties in the course of that activity, respect the principle of non-discrimination because of nationality.
Art. 15. A procuring power that uses a procurement power plant or markets as defined in Article 2, 4°, is exempt from the obligation to organize a procurement procedure.
CHAPTER III. - Scope of application for markets
Art. 16. This title applies to public contracts defined in Article 3, 1° to 4°, 10° to 12° and 15°, passed by the procuring authorities referred to in Article 12.
Art. 17. § 1^er. This Act does not apply to public contracts governed by different procedural rules, to pass:
1° pursuant to an international agreement concluded in accordance with the Treaty establishing the European Community, with one or more third countries to the European Community and dealing with works or supplies intended for the joint realization or exploitation of a work or services or competitions intended for the joint realization or operation of a project by the signatory States;
2° under an international agreement concluded in relation to the parking of troops and concerning companies of a Member State or a third country;
3° under the specific procedure of an international organization.
§ 2. This Act does not apply to public procurement of services referred to in Article 3, 4°, by a procuring authority to another procuring authority or an association of procuring powers, on the basis of an exclusive right of which they benefit under published legislative, regulatory or administrative provisions and consistent with the Treaty establishing the European Community.
§ 3. This Act does not apply to public procurement of supplies and services to which Article 296 of the Treaty establishing the European Community applies, to pass, by the Minister or by the authority he or she directs for that purpose, in the context of international cooperation of any kind, consisting mainly of the Member States of the European Union or the North Atlantic Treaty Organization. The King sets out the modalities of control to which these markets are subject.
Art. 18. The King may submit to specific rules of procurement and enforcement the contracts to which Article 296 of the Treaty establishing the European Community applies.
CHAPTER IV. - Passing procedure
Section 1^re. - 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 II. - 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 sentenced by a judicial decision that has the force of anything deemed to be known by the procuring authority for participation in a criminal organization, corruption, fraud or money laundering.
Art. 21. Contractors, suppliers and service providers from third countries to the European Community 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.
The notice of contract or, in its absence, the special terms of reference, may provide for a contrary provision.
Art. 22. § 1^er. A procuring authority may, in accordance with the principles of the Treaty establishing the European Community, reserve access to the procurement procedure for protected workshops or reserve its execution in the context of protected employment programmes, where the majority of workers concerned are persons with disabilities who, because of the nature or severity of their deficiencies, cannot engage in professional activity under normal conditions.
The contract notice or, in its absence, the special specifications note this access reservation.
§ 2. When a public market does not reach the amount set for European advertising, a procuring power may, in accordance with the principles of the Treaty establishing the European Community, reserve access to the procurement procedure for social economic enterprises to insert.
A social integration economy company means a company that meets the requirements of section 59 of the Act of 26 March 1999 on the Belgian employment action plan 1998 and has various provisions, or meets equivalent conditions in the original state of the candidate or bidder.
Section III. - Passing mode
Sub-section 1^re. - Call and tender
Art. 23. The public procurements have been made in principle by open or restricted procedure, either by auction, or by tender, which are appointed respectively open or restricted tender and open or restricted tender. The King sets out the organization of these modes of passation.
Art. 24. When the procuring authority decides to award the contract by award, the bidder must be awarded to the bidder who has given 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 takes into account the prices offered and other quantifiable elements that will, in a certain way, increase its disbursements.
Art. 25. When the procuring authority decides to award the contract by tender, it must be awarded to the bidder who has delivered the most economically advantageous regular offer from the point of view of the procuring power, taking into account the award criteria.
The attribution criteria must be indicated in the notice of contract or in the special specifications. 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, social considerations, cost of use, profitability, after-sales service and technical assistance, delivery date and delivery or delivery time, spare parts guarantees and security of supply.
For public markets reaching the amount set for European advertising, the procuring authority 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 specifies either their relative weighting as provided for in the preceding paragraph or their descending order of importance. If not, the attribution criteria have the same value.
Sub-section II. - Negotiated procedure
Art. 26. § 1^er. 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, where:
(a) the expenditure to be approved does not exceed, excluding the value added tax, the amounts fixed by the King;
(b) the purpose of the contract is to work, supplies or services declared secret or to be carried out with specific security measures, in accordance with existing legislative, regulatory or administrative provisions, or where the protection of the essential interests of the country requires it. This provision also applies to public procurement of supplies and services to which Article 296 of the Treaty establishing the European Community and to public contracts for air or marine services for the purposes of the Ministry of Defence;
(c) to the extent strictly necessary, the compelling urgency resulting from unpredictable events for the procuring power does not allow for the time required by the open, restricted or publicly negotiated procedure. The circumstances invoked to justify the imperious emergency shall, in no case, be attributable to the procuring power;
(d) no application for appropriate participation or request for appropriate participation, any appropriate offer or offer has been filed as a result of an auction or tender, provided that the initial market conditions are not substantially altered and, for markets reaching the amounts fixed for European advertising, that a report be communicated to the European Commission at its request;
(e) only irregular bids or unacceptable bids have been filed in response to a competitive bidding, tendering or dialogue, provided that the procuring authority consults all bidders who met the qualitative selection requirements and provided a formally regular offer during the first proceedings and that the initial market conditions are not substantially altered.
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 may, with a view to expanding competition, consult in addition to contractors, suppliers or service providers who, in his view, may meet the requirements for access and quality selection, whether or not they have provided an offer in the first proceedings;
(f) work, supplies or services may, for technical, artistic or exclusive purposes, be entrusted only to a specified contractor, supplier or service provider;
2° in the case of a public contract of work or services, where:
(a) additional work or services not included in the originally envisaged project or in the initial market have become necessary, as a result of an unforeseen circumstance, to the performance of the work or service as described therein, provided that the award is made to the contractor who performs the work or services and that the cumulative amount of contracts spent for the work or complementary services does not exceed fifty percent of the contract
- where such complementary work or services cannot be technically or economically separated from the main market without major disadvantage to the procuring power;
- where such work or services, although separable from the execution of the initial market, are strictly necessary for its further development;
(b) new work or services consisting of the repetition of similar work or services shall be assigned to the original contract contractor by the same procuring authority, provided that such work or services are in accordance with a basic project and that this project has been the subject of the initial contract passed by tender or tender. However, the possibility of using this procedure must be indicated as soon as the first market is competitive. The decision to award repetitive contracts must also take place within three years after the initial contract is concluded;
3° in the case of a public supply market, when:
(a) the products concerned are manufactured solely for the purposes of research, experimentation, study or development; this provision does not include production in quantities to establish the commercial viability of the product or to amortize research and development costs;
(b) additional supplies are to be made by the original supplier and are intended, either for the partial renewal of supplies or common use facilities, or for the extension of existing supplies or facilities, where the change of supplier would require the procuring authority to acquire a 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, as a general rule, exceed three years;
(c) complementary supplies of the same nature and having the same characteristics that, as a result of an unforeseen circumstance, are assigned to the original market supplier, provided that the cumulative amount of complementary supplies markets does not exceed fifty percent of the original market amount and that the cumulative amount of all markets does not reach the amounts set for advertising at the European level. The duration of these markets, as well as renewable markets, may not, as a general rule, exceed three years;
(d) these are listed and purchased supplies at a stock exchange;
(e) supplies are purchased under particularly advantageous conditions, either from a supplier permanently certifying its business activities, or from curators or liquidators of bankruptcy, judicial concordat or similar procedures existing in national legislation or regulations;
4° in the case of a public service market, where the service market in question follows a project competition and must, in accordance with the applicable rules, be awarded to the recipient or to one of the winners of this competition. In the latter case, all winners must be invited to participate in the negotiations.
§ 2. It can only be handled by procedure negotiated with advertising in the following cases:
1° in the case of a public contract of work, supplies or services, where:
(a) only irregular offers or unacceptable offers were filed as a result of tendering, tendering or competitive dialogue, provided that:
- the initial market conditions are not substantially modified and
- the procuring authority does not consult with all bidders who met the qualitative selection requirements and provided a formal offer during the first procedure;
(b) in exceptional cases, work, supplies or services that do not allow for prior and comprehensive pricing;
(c) market access is reserved pursuant to Article 22 and the estimated amount of the market does not reach the amount set for European advertising;
(d) the estimated value-added non-tax market does not reach the amounts fixed by the King, which, in any case, must be less than those fixed for European advertising;
2° in the case of a public labour market, where work is carried out solely for research, experimentation or development purposes and not for the purpose of ensuring profitability or recovery of research and development costs;
3° in the case of a public service market, to the extent that the nature of the delivery to be provided is such that the market specifications cannot be established with sufficient precision to allow the award of the market by open or restricted procedure.
§ 3. During the negotiation, the procuring authority ensures 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.
Sub-section III. - Competitive dialogue
Art. 27. A procuring power can only use competitive dialogue in the case of a particularly complex market where it is objectively unable 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.
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 IV. - Specific or complementary markets and procedures
Art. 28. A procuring power may use a public contract to promote work under the conditions established 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.
Art. 29. A procuring authority may, for markets of supplies or common-use services, use a dynamic procurement system.
The establishment of a dynamic procurement system requires, for each specific market, the open procedure and the use of electronic means for all phases of the procedure up to the award of the market.
The compliant indicative offers introduced by all bidders meeting the selection criteria may be amended at any time, provided that they remain in accordance with the special specifications.
The procuring power cannot use this system to prevent, restrict or distort competition.
The King sets out the conditions under which a dynamic acquisition system can be used.
Art. 30. In open, restricted or negotiated proceedings in the cases referred to in Article 26, § 1^er, 1°, e), and § 2, 1°, a), a procuring authority may precede the award of the market of an electronic auction provided that the market specifications can be accurately determined and that this applies to markets of supplies or services of common use.
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.
The procuring authority cannot resort to electronic auctions 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. 31. Within the limits of Article 34 of Directive 2004/18/EC, a regional government may determine, for public procurement on the design and construction of a set of social housing units, a special award procedure to choose the most suitable contractor to be integrated into a team that also includes the procuring authority and experts.
Art. 32. A procuring power may enter into framework agreements.
The choice of parties to the framework agreement and the award of contracts based on this agreement must be based on the same allocation criteria.
When awarding 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, as well as the duration of contracts based on this framework agreement, cannot exceed four years, except in exceptional cases duly motivated.
The procuring authority cannot resort to framework agreements in an abusive manner or in a manner that prevents, restricts or distorts competition.
The King sets out the conditions governing the framework agreement.
Art. 33. § 1^er. The King sets the rules for a project competition.
These rules include:
- the prohibition to limit access to participation in nationals of a territory or part of a territory of a Member State of the European Community;
- the prohibition of requiring participants to be physical persons or legal persons.
§ 2. The King may make specific attribution rules applicable to legal services markets relating to disputes that are limited to consultation and representation before courts and other dispute resolution bodies, as well as to the prevention of disputes.
Sub-section V. - Public Works Concessions
Art. 34. § 1^er. A concession of public works may be granted under the conditions established by the King.
§ 2. If the concessionaire is a procuring power referred to in Article 12, the concessionaire shall, if the concessionaire fails to perform the work, comply with the provisions of this title for third parties to the work or work. The same rule is applied when it assigns public procurement of supplies or services.
§ 3. If the concessionaire is a person other than a procuring power within the meaning of § 2, it is obligated to respect the advertising rules set by the King for contracting work to a third party. Not considered third parties, companies that have grouped to obtain the concession, or companies that are related to them.
For the purposes of this Article, a related business means any company on which the concessionaire may exercise, directly or indirectly, a dominant influence or any company that may exert a dominant influence on the concessionaire or that, like the concessionaire, 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
- may designate more than half of the members of the board of directors, management or supervision of the company.
Sub-section VI. - Common provisions
Art. 35. The completion of a procedure does not imply the obligation to award the contract. The procuring power may either renounce the award of the contract, or redo the procedure, if necessary in another way.
Art. 36. A market can be divided into several lots.
In this case, the procuring authority has the right to assign only some and, eventually, to decide that the other lots will be subject to one or more new markets, if necessary in another mode.
Art. 37. § 1^er. When the procuring authority demonstrates the need, it may use a split market in one or more firm slices and one or more conditional slices. The conclusion of the market concerns the entire market but only engages the procuring power for the firm slices. The execution of each conditional sentence shall be subject to a decision of the procuring authority to be notified to the adjudicator in accordance with the terms and conditions provided by the contract.
§ 2. Upon conclusion, a contract may include one or more extensions, depending on the terms mentioned in the notice of contract or in the special specifications. The total duration, including renewals, may generally not exceed four years from the conclusion of the market.
Art. 38. In the case of a joint contract on behalf of different procuring powers and, where appropriate, persons of private law, interested persons shall designate the authority or body that shall intervene, in their collective name, as a procuring power. Market conditions may provide for a separate payment for each of these persons.
CHAPTER V. - Conditions of execution
Section 1^re. - General Rules of Enforcement
Art. 39. The King sets the general rules for the execution of public contracts.
Art. 40. In accordance with the principles of the Treaty establishing the European Community, and provided that they are not directly or indirectly discriminatory and that they are mentioned as appropriate in the notice of contract or in the special terms of reference, the procuring power 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.
Section II. - Technical specifications
Art. 41. The procuring authority includes the technical specifications in the special specifications of the contract, in the documents taking place or in the general documents made applicable to the contract.
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 III. - Social and tax obligations
Art. 42. § 1^er. 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 § 1^er1° 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 contractor, to comply with the legal, regulatory or conventional provisions referred to in § 1^er, 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 § 1^er, 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. The action of the personnel deriving from § 1^er, 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 § 1^er, 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 § 1^er, 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 §§ 1^er and 2 are recognized by the procuring authority and give rise to the application of the measures provided for in the event of breach of the terms of the contract.
§ 6. For the activities referred to in Article 400 of the Income Tax Code 1992 and Article 30bis of the Law of 27 June 1969 revising the Decree-Law of 28 December 1944 concerning the social security of workers, in the public works markets, the contractor and the subcontractor are deemed to have met their obligations under § 1^er and 3 in tax and social security, as long as their subcontractors comply with the provisions of the legislation relating to the registration of contractors and the provisions of the legislation governing the approval of contractors.
For activities that fall within the scope of the Joint Construction Commission, the above-mentioned presumption applies only if the contractor and the subcontractor have complied with the legal and regulatory restraining or dispensing provisions set out in sections 30bis of the Act of 27 June 1969 and 403 of the Income Tax Code 1992.
Section IV. - Third party rights on claims
Art. 43. § 1^er. Adjudicator receivables due in the execution of a public contract of work, supplies or services, passed by a procuring authority referred to in section 12, may not be subject to seizure, opposition, assignment or bonding until receipt.
When the contract has a provisional reception and a final reception, the prohibition ends at the provisional reception of the entire market.
§ 2. With the exception of advances under section 7, paragraph 2, these receivables may be seized or subject to opposition even before receipt:
- by the workers and employees of the contractor, supplier or service provider for their wages and supplements, due to the benefits of the market in question;
- by subcontractors and suppliers of the contractor, supplier or service provider for the amounts due to the work, supplies or services they have performed for the market in question.
§ 3. With the exception of advances referred to in Article 7, paragraph 2, receivables may also be transferred or pledged by the contractor, supplier or service provider, even before receipt, to the benefit of donors if they are assigned to the credit guarantee or advances in respect of the performance of the contract in question, provided that the use of that credit or advances is concomitant or serviced
§ 4. The assignment and assignment of the receivable are served by the assignee to the procuring power by the owner of the bailiff. The meaning may also be made by the assignee to the procuring authority by registered letter. To this end, the procuring authority explicitly mentions in the special terms of reference or in the documents taking place, the administrative coordinates of the service to which the letter is to 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 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 makes known to the assignees of receivables and to the beneficiaries of the pledge, by registered letter to the post, the seizures or oppositions that were notified to the request of the privileged creditors.
PART III. - Public contracts for construction, supplies and services in the water, energy, transport and postal services sectors
CHAPTER I^er. - Scope and general provisions
Section 1^re. - Scope of application for persons
Art. 44. Are subject to the application of this title, when carrying out one of the activities in question:
1° the procuring powers defined in Article 2, 1°;
2° the public enterprises defined in section 2, 2°, for the markets relating to their public service tasks within the meaning of a law, decree or order. This provision does not prejudice the application of section 72.
A non-limitative list of public enterprises is established by the King.
Section II. - Scope of application for markets
Art. 45. This title applies to public contracts defined in Article 3, 1° to 4°, 10°, 11° and 15°, passed by the procuring authorities and public enterprises referred to in Article 44.
This title does not apply to public works concessions defined in section 3, 12°, which are granted by the procuring authorities or public enterprises carrying on one or more of the activities referred to in this title when these concessions are granted for the purposes of these activities.
Section III. - Scope of application for activities
Sub-section 1^re. - Public markets in water and energy sectors and specific exclusions
Art. 46. In the water and energy sectors, the following activities are subject to this heading:
1° the provision or operation of fixed networks to provide a service to the public in the field of the production, transport or distribution of drinking water, electricity, gas or heat;
2° the supply of these networks in drinking water, electricity, gas or heat.
However, in the case of a public enterprise, this diet does not constitute an activity referred to in this Act, provided that:
(a) in the case of drinking water and electricity:
- this public enterprise produces drinking water or electricity because its consumption is necessary for the exercise by it of an activity other than those referred to in this section and sections 47 to 52;
- the supply of the public network depends only on the consumption of this public enterprise without exceeding thirty per cent of its total production of drinking water or electricity calculated on the average of the last three years, including the current year;
(b) in the case of gas or heat;-
- this public enterprise produces gas or heat as an inevitable result of the exercise of an activity other than those described in this section and sections 47 to 52;
- the supply of the public network is only intended to economically exploit this production and does not exceed twenty percent of the revenue of this public enterprise calculated on the average of the last three years, including the current year;
3° the operation of a geographic area for the purpose of prospecting or extracting oil, gas, coal or other solid fuels.
Art. 47. § 1^er. This title also applies to public procurement within the meaning of section 45 of the procuring authorities and public enterprises providing or operating fixed networks to provide service to the public in the field of the production, transport or distribution of drinking water or supplying these drinking water networks, and that:
1° are related to hydraulic engineering projects, irrigation or drainage, provided that the volume of water intended for drinking water is more than twenty percent of the total volume of water provided by these projects or by these irrigation or drainage facilities;
2° are related to sewage disposal or treatment.
§ 2. This Act does not apply to contracts other than procurement powers and public enterprises referred to in § 1^er pass to buy water.
Art. 48. Without prejudice to section 72, this title is not applicable to the procuring powers referred to in section 44, 1°, for contracts of work, supplies and services relating to the production of electricity.
Art. 49. In the energy sector, this Act does not apply to markets that a procuring authority or a public enterprise carrying on an activity referred to in section 47 shall provide energy or fuel for the production of energy.
Sub-section II. - Public markets in the transport sector
Art. 50. In the transport sector, the following activities are subject to the provisions of this heading:
1° the provision or operation of networks to provide service to the public in the field of transport by train, metro, tram, bus, trolleybus, cable or automatic system. For transport services, it is considered that a network exists when the service is provided under the conditions determined by the competent authority, including on the routes to be followed, the available transport capacity or the frequency of the service;
2° the operation of a geographic area to make available to air, sea or river carriers, airports, sea or interior ports or other transport terminals.
Sub-section III. - Public markets in the postal services sector
Art. 51. § 1^er. In the postal services sector, activities aimed at providing postal services are subject to the provisions of this title or, under the conditions referred to in § 2(c), other services than postal services.
§ 2. We hear:
(a) Postal shipment: a consignment bearing an address in the final form in which it is to be routed, regardless of its weight. For example, in addition to shipments of correspondence, books, catalogues, newspapers, periodicals and postal parcels containing goods with or without commercial value, regardless of their weight;
(b) postal services: services consisting of the lifting, sorting, shipping and distribution of postal shipments. These services include:
- reserved postal services: services that are reserved or may be reserved under section 144octies of the Act of 21 March 1991 on the reform of certain economic public enterprises;
- other postal services: services that cannot be reserved under section 144octies of the Act of 21 March 1991;
(c) services other than postal services: services provided in the following areas:
- the mail services management services (both the services before sending and those after sending, such as mailroom management services), and
- value-added services related to e-mail and carried out entirely electronically (including secure transmission of electronically coded documents, address management services, and recommended e-mail transmission);
- services for shipments not included in (a) such as mailing without address;
- financial services as defined in Class 6 of Schedule II to this Act, including postal transfers and transfers from current postal accounts;
- philatelic services;
- logistics services (services involving physical remission and/or deposit to non-postal functions), provided that these services are provided by an entity also providing postal services within the meaning of point (b), first or second dash, and that the latter are not directly exposed to competition in markets with limited access.
Sub-section IV. - Markets for several activities and general exclusions
Art. 52. This title does not apply:
1° to the public markets that the procuring authorities and public enterprises are moving for the continuation of the activities referred to in this title in a third country to the European Community, under conditions not involving the physical exploitation of a network or a geographic area within the European Community;
2° to public procurement for resale or lease to third parties where the procuring power or public enterprise has no special or exclusive right to sell or lease the subject matter of these markets and where other persons may freely sell or rent it under the same conditions as the procuring power;
3° in public markets:
(a) a public enterprise passes to a related business, or
(b) that a joint venture, for the purposes of the continuation of the activities referred to in this title, of several public undertakings within the meaning of this title and of procuring entities within the meaning of Title IV, shall be carried out with one of these public or procuring entities or a business related to one of them.
This exception is only on condition that at least eighty per cent of the average turnover of the company's work, supplies or services over the past three years results from the provision of this work, supplies or services to the companies to which it is related.
When, depending on the date of creation or the start of business of the related company, the turnover is not available for the last three years, it is sufficient that this company demonstrates that the realization of average turnover is likely, in particular by business projections.
Where identical or similar work, supplies or services are presumed by more than one enterprise related to the public enterprise or the procuring entity, the total turnover resulting from the work, supplies or services required by these undertakings must be taken into account.
A related undertaking means any company whose annual accounts are consolidated with those of the public enterprise or procuring entity in accordance with the requirements of Council Directive 83/349/EEC of 13 June 1983, based on Article 54, 3, g, of the Treaty, concerning consolidated accounts. In the case of public enterprises or procuring entities not subject to Directive 83/349/EEC, "related enterprise" means any business:
i) on which the public enterprise or procuring entity may exercise, directly or indirectly, a dominant influence because it
- holds the majority of the company's capital, or
- has 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;
(ii) or may exercise the same dominant influence as in (i) on the public enterprise or procuring entity;
(iii) or which, like the public enterprise or the procuring entity, is subject to the same dominant influence as at the 1st of another company due to the ownership, financial participation or rules governing it;
4° to public markets that the procuring authorities or public enterprises are for purposes other than the continuation of the activities covered by this title. This provision does not prejudice the application of title II for the procuring powers defined in section 2, 1^er.
5° to the public procurements that the procuring authorities or public enterprises are engaged in the pursuit of the activities covered in this title if the activity is directly exposed to competition, in markets that are not limited to access. However, this exclusion is subject to an exemption procedure by the competent national authority and a decision of the European Commission.
CHAPTER II. - Passing mode
Art. 53. § 1^er. The public procurements have been made in principle by open or restricted procedure, either by auction, or by tender, which are appointed respectively open or restricted tender and open or restricted tender, or by procedure negotiated with advertising.
The King sets out the organization of these modes of passation.
§ 2. It can only be processed by negotiated procedure 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, where:
(a) the expenditure to be approved does not exceed, excluding the value added tax, the amounts fixed by the King;
(b) the purpose of the contract is to work, supplies or services declared secret by the authority or to be carried out with specific security measures in accordance with existing legislative, regulatory or administrative provisions, or where the protection of the essential interests of the country requires it;
(c) to the extent strictly necessary, the compelling urgency resulting from unpredictable events for the procuring power does not allow for the time required by the open, restricted or publicly negotiated procedure. The circumstances invoked to justify the imperious emergency must, in no case, be attributable to the procuring power or the public enterprise;
(d) no application for appropriate participation or request for participation, any appropriate offer or offer has been filed in response to an open, restricted or publicly traded procedure, provided that the initial market conditions are not substantially amended;
(e) work, supplies or services may, because of their technical, artistic specificity or because of the protection of exclusive rights, be entrusted only to a specified contractor, supplier or service provider;
(f) the market has gone through only for research, experimentation, study or development purposes and not for the purpose of ensuring profitability or recovering research and development costs and to the extent that the procurement of such a contract does not prejudice the competition of subsequent markets that pursue such purposes;
(g) the market is to pass on the basis of a framework agreement, provided that this framework agreement has been passed according to one of the procedures referred to in § 1^er;
2° in the case of a public contract of work or services, for work or additional services not included in the originally awarded project or in the first contract entered into and that have become necessary, as a result of an unforeseen circumstance, to the execution of this contract, provided that the award is made to the contractor or service provider who executes the initial contract:
- where such complementary work or services cannot be technically or economically separated from the main market without major disadvantage for the procuring power or public enterprise,
or
- where such complementary work or services, although separable from the execution of the initial market, are strictly necessary for its further development;
3° in the case of a public labour market, for new work, consisting in the repetition of similar works that are attributed to the buyer of the initial market by the same procuring authority or the same public enterprise, provided that these works are in accordance with a basic project and that this project has been the subject of a first contract passed by adjudication, call for tenders or by procedure negotiated with advertisement. However, the possibility of using this procedure must be indicated as soon as the first market is competitive;
4° in the case of a public supply market, when:
(a) additional supplies 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 a different technical equipment resulting in in incompatibility or technical difficulties of disproportionate use and maintenance;
(b) complementary supplies of the same nature and with the same characteristics shall be assigned to the supplier of the initial market, as a result of an unforeseen circumstance, provided that the cumulative amount of complementary supplies markets does not exceed fifty percent of the original market amount and that the cumulative amount of all markets does not amount to the amounts set for advertising at the European level;
(c) these are listed and purchased supplies at a stock exchange;
(d) it is an opportunity purchase, if it is possible to acquire supplies by taking advantage of a particularly advantageous opportunity that occurred in a very short period of time and for which the price to be paid is considerably lower than the normally market prices;
(e) supplies are purchased under particularly advantageous conditions either from a supplier permanently certifying its commercial activities, or from curators or liquidators of bankruptcy, judicial concordat or similar procedures existing in national legislation or regulations;
5° in the case of a public service market, where the contract follows a project competition and must, in accordance with the applicable rules, be awarded to the winner or to one of the winners of this competition. In the latter case, all recipients must be invited to participate in the negotiations;
6° in the case of a public service market whose total amount does not reach the amount fixed for European advertising, when:
(a) services may not, owing to the technical needs or significant prior investments, be entrusted only to a specified service provider;
(b) new services, consisting in the repetition of similar services, are assigned to the original contract buyer by the same procuring authority or the same public enterprise, provided that these services are in accordance with a basic project and that this project has been the subject of a first contract passed after competition. The possibility of using this procedure must be indicated as soon as the first operation is competitive.
Art. 54. § 1^er. In the case of a public procurement of supplies, the procuring authority or public enterprise may reject any offer whose share of products originating from third countries exceeds half of the total value of the products composing this offer. For the purposes of this article, software used in telecommunications network equipment is considered to be products.
A third country means any country with which the European Community has not entered into, in a multilateral or bilateral framework, an agreement ensuring comparable and effective access of the Community's enterprises to the markets of that country in accordance with the conditions of Article 21.
If two or more offers are deemed to be equivalent, the procuring authority or the public enterprise must give preference to those offers that cannot be rejected under paragraph 1^er. For the price criterion, such an offer is considered equivalent if it does not exceed three per cent the amount of an offer to which paragraph 1 applies.^er.
However, the requirement referred to in the preceding paragraph does not apply if the procuring authority or public enterprise was to acquire equipment with technical characteristics different from those of the existing equipment, resulting in in incompatibility or technical difficulties of use or maintenance or disproportionate costs.
§ 2. For the application of § 1^er, the share of products originating from third countries is determined in accordance with Council Regulation (EEC) No. 2913/92 of 12 October 1992 establishing the Community Customs Code.
For the determination of the share of products originating from third countries, are not taken into account the third countries to which the Council of the European Union extended the benefit of the Directive 2004/17/EC of the Parliament and of the Council of 31 March 2004 on the coordination of procurement procedures in the sectors of water, energy, transport and postal services.
Art. 55. Articles 5 to 11, 15, 17, §§ 1^er and 2, 19 to 22, 24 and 25, 28 to 30, 32 and 33, 35 to 43, as well as section 2 of the Act of 16 June 2006 relating to the allocation, information to candidates and bidders and the waiting period for public procurement and certain contracts of work, supplies and services, are also applicable to the public markets covered by this title.
Article 17, § 2, however, does not apply to public enterprises.
Section 30 also applies to the procedure negotiated with advertising.
PART IV. - Competition within the framework of the European Community of certain contracts of work, supplies and services in the sectors of water, energy, transport and postal services
CHAPTER I^er. - General principles
Art. 56. The procuring entities deal with contractors, suppliers and service providers in a manner that is non-discriminatory and act with transparency.
Art. 57. Contracts are awarded after 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 II of this title.
Art. 58. The King sets the rules for communication between procuring entities and contractors, suppliers and service providers. The chosen means of communication must be generally available and cannot restrict access to the procurement procedure.
The King sets the rules applicable to the information of candidates and bidders regarding their application for participation or offer or a decision to renounce the award of the contract or to redo the procedure.
Art. 59. A procuring entity that uses a purchasing power plant or markets within the meaning of Article 2, 4°, is exempted from the obligation to organize a procurement procedure itself.
CHAPTER II. - Contracts of work, supplies and services concluded by private companies
Section 1^re. - Scope and general provisions
Sub-section 1^re. - Adjudicators and markets
Art. 60. § 1^er. The provisions of this title shall apply to procuring entities within the meaning of Article 2, 3°.
§ 2. The provisions of this title apply only to the markets defined in Article 4, 1°, 2° and 6°, whose estimated amounts are equal to or greater than the thresholds fixed for European advertising.
This title does not apply to work concessions within the meaning of section 4, 6°, which are granted by procuring entities carrying on one or more of the activities referred to in this title when these concessions are granted for the purposes of these activities.
Sub-section II. - Markets in water, energy, transport and postal services and specific exclusions
Art. 61. Sections 46 to 51 also apply to determine the activities of the procuring entities referred to in this title.
Art. 62. This title does not apply:
1° to the markets that a procuring entity passes for the continuation of the activities referred to in this title in a third country to the European Community, under conditions not implicating the physical exploitation of a network or a geographic area within the European Community;
2° to the markets for resale or lease to third parties where the procuring entity has no special or exclusive right to sell or lease the object of these contracts and where other persons may freely sell or rent it under the same conditions as the procuring entity;
3° to markets where they are declared secret by the public authority or when their execution must be accompanied by special security measures, in accordance with existing legislative, regulatory or administrative provisions, or where the protection of the essential interests of the security of the country requires it;
4° to markets governed by different procedural rules passed under the specific procedure of an international organization;
5° to markets governed by different procedural rules to be made under an international agreement concluded, in accordance with the Treaty establishing the European Community, between a Member State and one or more third countries and dealing with works or supplies intended for the realization or joint exploitation of a work or services or projects intended for the realization or joint exploitation of a project by the signatory States;
6° to markets governed by different procedural rules to pass under an international agreement concluded in relation to the parking of troops and concerning companies of a Member State or a third country;
7° to contracts that procuring entities pass or organize for purposes other than the continuation of their activities under this heading;
8°(a) to markets that a procuring entity passes to a related business, or
(b) that a joint venture, for the purposes of the continuation of the activities referred to in this title, of several procuring entities within the meaning of this title, shall be carried out with one of these procuring entities or a business related to one of them.
Section 52, 3°, paragraph 2 et seq., also applies to determine the conditions of application of this exemption;
9° to the contracts that the procuring entities are moving for the continuation of the activities covered in this title if the presumed activity is directly exposed to competition, in markets whose access is not limited. However, the application of this exclusion is subject to a procedure for the exemption of the competent national authority and a decision of the European Commission.
Section II. - Right of access and qualitative selection
Art. 63. The King sets the right of access rules as well as those relating to the qualitative selection of candidates and bidders.
Art. 64. Contractors, suppliers and service providers from third countries to the European Community 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.
The notice of contract or, in its absence, the terms of reference, may provide for a contrary provision.
Art. 65. A procuring entity may, in accordance with the principles of the Treaty establishing the European Community, reserve access to the procurement procedure for protected workshops or reserve its execution in the context of protected employment programmes, where the majority of workers concerned are persons with disabilities who, because of the nature or severity of their deficiencies, cannot engage in professional activity under normal conditions.
The notice of contract, or, in its absence, the specifications, mentions this booking.
Section III. - procurement methods and rules applicable to project competitions
Art. 66. § 1^er. Contracts have been contracted in principle by open procedure, by restricted procedure or by procedure negotiated with advertising.
§ 2. Contracts can only be negotiated without advertising in the following cases:
1° in the case of a contract of work, supplies or services where:
(a) to the extent strictly necessary, the compelling urgency resulting from unpredictable events for procuring entities does not allow for the time required by the open, restricted or publicly negotiated procedure. In no case shall the circumstances invoked to justify the imperative emergency be attributable to the procuring entity;
(b) no application for appropriate participation or application, any appropriate offer or offer has been filed in response to a pre-competition procedure, provided that the initial market conditions are not substantially amended;
(c) work, supplies or services may not be subject to technical, artistic or for reasons of protection of exclusive rights to a specified contractor, supplier or service provider;
(d) the market has gone through solely for research, experimentation, study or development purposes and not for the purpose of ensuring profitability or recovering research and development costs and to the extent that the procurement of such a contract does not prejudice the competition of subsequent markets that pursue such purposes;
(e) for contracts to be contracted on the basis of a framework agreement, provided that this framework agreement has been passed according to one of the procedures set out in § 1^er;
2° in the case of a contract of work or services for additional work or services not included in the originally awarded project or in the first contract entered into and which became necessary, as a result of an unforeseen circumstance, to the execution of this contract, provided that the award is made to the contractor or service provider who executes the initial contract:
- where such complementary work or services cannot be technically or economically separated from the main market without major disadvantage to procuring entities,
or
- where such complementary work or services, although separable from the execution of the initial market, are strictly necessary for its further development;
3° in the case of a contract of work, for new work, consisting in the repetition of similar works, which are attributed to the holder of the initial market by the same procuring entity, provided that this work is in accordance with a basic project and that this project has been the subject of a first contract passed after competition. However, the possibility of using this procedure must be indicated as soon as the first market is competitive;
4° in the case of a supply market where:
(a) additional supplies 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 entity to acquire different technical equipment resulting in in incompatibility or disproportionate use and maintenance difficulties;
(b) these are listed and purchased supplies at a stock exchange;
(c) it is an opportunity purchase, if it is possible to acquire supplies by taking advantage of a particularly advantageous opportunity that occurred in a very short period of time and for which the price to be paid is considerably lower than the prices normally practised on the market;
(d) supplies are purchased under particularly advantageous conditions either from a supplier permanently certifying its commercial activities, or from curators or liquidators of bankruptcy, judicial concordat or similar procedures existing in national legislation or regulations;
5° in the case of a service market where the contract follows a project competition and must, in accordance with the applicable rules, be awarded to the recipient or to one of the winners of this competition. In the latter case, all winners must be invited to participate in the negotiations.
Art. 67. Without prejudice to Article 69, contracts are awarded:
- the bidder who gave the lowest price,
- either to the bidder who has delivered the most economically advantageous offer from the point of view of the procuring entity, taking into account various criteria related to the subject matter of the market and indicated in the notice of contract or in the specifications, such as the delivery or execution time, the cost of use, profitability, quality, aesthetic and functional character, the environmental characteristics, the technical value, the service
The procuring entity specifies the relative weighting it assigns to each of the attribution criteria, which may eventually be expressed in a range whose maximum deviation must be appropriate. When, according to the procuring entity, weighting is not possible for demonstrable reasons, the criteria are classified in descending order of importance.
Art. 68. Sections 66 and 67 do not apply to the service contracts referred to in Schedule II, B, of this Act.
Art. 69. In the case of a supply market, the procuring entity may, under the same conditions as those provided in section 54, reject any offer whose share of products originating from third countries to the European Community exceeds half of the total value of the products composing this offer.
In accordance with the same conditions and exceptions as defined in section 54, the procuring entity shall, if two or more offers are deemed to be equivalent, give preference to the offer that cannot be rejected under paragraph 1^er.
Section IV. - Implementing conditions
Art. 70. In accordance with the principles of the Treaty establishing the European Community, and provided that they are not directly or indirectly discriminatory and that they are mentioned in the notice of contract or in the special terms of reference, the procuring entity 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.
Section V. - Technical specifications and standards
Art. 71. The procuring entity includes technical specifications in the contract specifications, in the documents taking place, or in the general documents applicable to the contract.
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.
CHAPTER III. - Markets concluded by public companies or related to electricity generation
Art. 72. The provisions of Article 4 and Title IV shall apply to public enterprises defined in Article 2, 2°, for contracts, agreements or contests whose amounts are equal to or greater than those provided for in Article 60, § 2, and which do not relate to their public service duties within the meaning of a law, decree or order but relate to one of the activities referred to in Article 61.
The provisions of Article 4 and Title IV shall also apply to the procuring powers referred to in Article 2, 1°, for contracts, agreements or contests whose estimated amounts equal or exceed those referred to in paragraph 1^er which relate to the production of electricity.
PART V. - Miscellaneous and final provisions
Art. 73. § 1^er. A public market or a market for the continuation of several activities is subject to the rules applicable to the activity to which it is primarily intended.
§ 2. When the public market or market is involved in several activities and it is objectively impossible to establish which activity it is primarily intended, the following rules apply:
1° if any of the activities to which the public market or market is intended is subject to title II and the other activity under title III or title IV, the public market or the market shall be assigned in accordance with the rules of title II;
2° if any of the activities to which the public market or market is destined is subject to Title III or Title IV and the other activity is not subject to any of the securities, the public market or the market is assigned in accordance with the rules, as the case may be, of Title III or Title IV.
§ 3. However, the choice between the procurement of a single public market or a single market for several activities and the procurement of several public markets or separate markets may not be made to exclude either of the scope of this Act.
Art. 74. Within the limits of its responsibilities, each Minister is competent to make decisions regarding the procurement and enforcement of the contracts of the federal authority and the agencies that fall under its authority.
For persons of public law other than those referred to in paragraph 1^er, powers relating to procurement and enforcement of 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 1^er 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. 75. § 1^er. 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 establishing the European Community and the international acts taken under it and concerning public markets and contracts of work, supplies and services referred to in 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. 76. 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. 77. The following amendments are made to the Act of 20 March 1991 organizing the approval of construction contractors:
1° to Article 1^er2°, the words "the law on public procurement: the law of 24 December 1993 on public procurement and certain contracts of work, supplies and services" are replaced by the words: "the law on public procurement: the law of 15 June 2006 on public procurement and certain contracts of work, supplies and services";
2° to Article 2, paragraph 1^er is replaced by the following paragraph:
"This Act applies to public contracts of work as defined in Article 3, 2°, of the Act of 15 June 2006 on public procurement and certain contracts of work, supplies and services, which are attributed by the procuring authorities and public enterprises as defined in Article 2, 1° in 2°, of the same Act. »;
3° Article 4, § 1^er, 4°, a), is replaced by the following provision:
"4° (a) shall not be condemned by a judgment having force of thing tried to:
- participation in a criminal organization as defined in Article 2, § 1^erthe Joint Action 98/773/JAI of the Council;
- corruption, as defined in Article 3 of the Council's Act of 26 May 1997 and Article 3, § 1^erJoint action 98/742/JAI of the Council;
- fraud within the meaning of Article 1^er the Convention on the Protection of the Financial Interests of the European Communities;
- money laundering as defined in Article 1^er Council Directive 91/308/EEC of 10 June 1991 on the prevention of the use of the financial system for money-laundering purposes;
- any other offence affecting by its nature the professional morality of the entrepreneur. »
Art. 78. Are repealed:
- Article 11, § 1^erthe Act of 21 March 1991 on reform of certain economic public enterprises;
- Act of 24 December 1993 on public procurement and certain contracts of work, supplies and services;
- Article 115 of the Act of 14 January 2002 on care measures.
Art. 79. Royal decrees under or under this Act shall be deliberated in the Council of Ministers.
Art. 80. The King sets the date of entry into force of titles I^erII, III and IV and each of the provisions of heading V.
This article and articles 15, 31, 77 and 79 come into force on the day of their publication in the Belgian Monitor.
Promulgate this law, order that it be clothed with the seal of the State and published by the Belgian Monitor.
Given in Brussels on 15 June 2006.
ALBERT
By the King:
The Prime Minister,
G. VERHOFSTADT
Seal of the state seal:
The Minister of Justice,
Ms. L. ONKELINX
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Note
(1) Session 2005-2006.
House of Representatives:
Parliamentary documents. - Bill 51-2237/1. - Amendments, No. 51-2237/2. - Report, no. 51-2237/3. - Text adopted by the Commission, No. 51-2237/4. - Amendments, No. 51-2237/5. - Supplementary report, No. 51-2237/6. - Article amended by the Commission, No. 51-2237/7. - Amendments, No. 51-2237/8. - Opinion of the State Council, No. 51-2237/9. - Supplementary report, No. 51-2237/10. - Text adopted by the Committee (Article 78 of the Constitution), No. 51-2237/11. - Text adopted by the Committee (Article 77 of the Constitution), No. 51-2237/12. - Text adopted in plenary and transmitted to the Senate, No. 51-2237/13.
Full report: 4 May 2006.
Senate:
Parliamentary documents. - Project referred to by the Senate, No. 3-1689/1. Amendments, No. 3-1689/2. - Report, number 3-1689/3. - Amendments, No. 3-1689/4. - Decision not to amend, No. 3-1689/5.
Annales du Sénat : 1^er June 2006.
Text corrections: see document No. 3-1689/3, pp. 11-13.

Annex I^re
List of work activities referred to in Article 3 of the Act of 15 June 2006 on public procurement and certain contracts of work, supplies and services

For the consultation of the table, see image

Annex II
Services referred to in section 3 of the Public Procurement Act of June 15, 2006 and certain contracts of work, supplies and services

Annex II A (2)

For the consultation of the table, see image

Annex II B (2)

For the consultation of the table, see image
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Notes
(1) In the event of a different interpretation between the CPV and NACE, the NACE nomenclature prevails - Council Regulation (EEC) No. 3037/90 of 9 October 1990 on the statistical nomenclature of economic activities in the European Community (OJ L 293 of 24.10.1990, p. 1). Regulation as amended by Commission Regulation (EC) No. 761/93 (OJ L 83 of 3.4.1993, p. 1).
(2) In the event of a different interpretation between the CPV and the CPC, the CPC nomenclature prevails.
(3) CPC Nomenclature (provisional version), used to define the scope of Directive 92/50/EEC.
(4) Excludes railway transport services covered by category 18.
(5) Excludes railway transport services covered by category 18.
(6) Excludes financial services related to the issuance, purchase, sale and transfer of securities or other financial instruments, as well as services provided by central banks.
Also excluded are the services consisting of the acquisition or lease, regardless of the financial terms, land, existing buildings or other immovable property or that relate to rights to such property; However, the financial services provided concurrently, prior to or consecutively to the acquisition or lease contract in any form, are subject to this Act.
(7) Except for research and development services other than those whose fruits belong exclusively to the procuring power for its use in the exercise of its own activity, provided that the service delivery is fully paid by the procuring power.
(8) Except for arbitration and conciliation services.
(9) Except for employment contracts.
(10) Except for contracts for the acquisition, development, production or co-production of programs by broadcasting organizations and contracts for broadcast times.