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16 JUIN 2006. - Allocation, information to candidates and bidders and the waiting period for public procurement and certain contracts of work, supplies and services (1)

ALBERT II, King of the Belgians,
To all, present and to come, Hi.
The Chambers adopted and We sanction the following:
CHAPTER I^er. - General provisions and definitions
Article 1^er. This Act regulates a matter referred to in Article 77 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.
CHAPTER II. - Attribution, information to candidates
and bidders and waiting times in public procurement
Art. 2. § 1^er. The award of a public procurement contract referred to in section 3 of the Act of 15 June 2006 on public procurement and certain contracts of work, supplies and services, referred to below in the Public Procurement Act, is the decision of the procuring authority appointing the procurement contract and, where applicable, approving its offer. Information relating to this decision which is communicated under § 2 does not create any contractual undertaking.
The conclusion of the contract takes place by the notification of the contract commitment to the contract award. For the negotiated procedure referred to in Article 3 of the Public Procurement Act, the King may provide for other forms of conclusion. Once the contract has been concluded, the contract is no longer subject to suspension or cancellation by the judge, based on irregular transfer, without prejudice to the application of § 4.
§ 2. Applicants and bidders have the right to obtain information regarding the decision made by the procuring authority regarding their application for participation or offer or the decision referred to in section 35 of the Public Procurement Act. The King may provide for exceptions to this right for markets below certain amounts.
Some information may not be disclosed where their disclosure would hinder the application of a law, would be contrary to the public interest, would prejudice the legitimate commercial interests of public or private companies or could adversely affect fair competition between companies.
§ 3. The procuring authority respects a waiting period before entering into the market. During this period, the aggrieved or risky bidder may require the suspension of the award of the contract, without a serious and difficultly repairable harm being required. When this request is filed in time, the waiting period is extended to allow the suspension procedure to proceed. If, at the end of this extension, a decision has not been reached, the conclusion of the contract may take place without further delay.
The application is filed, either according to the appropriate emergency procedure provided for by the coordinated laws on the Council of State, or referred to the ordinary judge if the procuring power does not fall within the jurisdictional control of the Council of State. The decision also takes into account the balance between the public interest and the interest of the bidder.
The King determines the starting point of the waiting period, its reasonable duration and its possible extension, in accordance with European law. It may provide for exceptions to a waiting period for certain types of contracts and procedures and for markets below certain amounts.
§ 4. In the event of a conclusion of the contract before the expiry of the waiting period, the aggrieved or risky bidder may, within thirty days of the date on which he or she became aware of the conclusion of the contract, apply for the cancellation of the contract to the competent court president as referred. The application must be directed against the procuring authority and against the adjudicator.
The judge rejects the application:
1° if, apart from the lack of knowledge of the waiting period, the assignment was clearly carried out on a regular basis;
2° if the bidder concerned obviously does not take into consideration to be able to claim the award of the contract.
The judge may reject the application when the contract is partially or fully executed at the time of delivery.
CHAPTER III. - Attribution, information to candidates and bidders and waiting times in certain contracts of work, supplies and services in the sectors of water, energy, transport and postal services
Art. 3. § 1^er. Candidates and bidders have the right to obtain information relating to the decision of the procuring entity referred to in section 2, 3, of the Public Procurement Act, as well as by the public enterprise or the procuring authority referred to in section 72 of the Public Procurement Act, concerning their application for participation or offer or the decision not to award the contract. The King may provide for exceptions to this right for markets below certain amounts.
Some information may not be disclosed where their disclosure would hinder the application of a law, would be contrary to the public interest, would prejudice the legitimate commercial interests of public or private companies or could adversely affect fair competition between companies.
§ 2. The procuring entity, as well as the public enterprise or the procuring authority referred to in section 72 of the Public Procurement Act, shall meet a waiting period before entering into the contract. During this period, the aggrieved or risky bidder may require the suspension of the award of the contract without serious and difficult repair to be required. When this request is filed in time, the waiting period is extended to allow the suspension procedure to proceed. If at the end of this extension a decision has not been reached, the conclusion of the contract may take place without further delay.
The application shall be filed, either in accordance with the appropriate emergency procedure provided for by the coordinated laws on the Council of State, or referred to the ordinary judge if the procuring entity, the public enterprise or the procuring power do not fall within the jurisdictional control of the Council of State. The decision also takes into account the balance between the public interest and the interest of the bidder.
The King determines the starting point of the waiting period, its reasonable duration and its possible extension, in accordance with the European directives on this matter. It may provide for exceptions to a waiting period for certain types of markets and procedures.
§ 3. Once the contract is entered into, the contract is no longer subject to suspension or cancellation by the judge, based on irregular transfer, without prejudice to the application of this paragraph.
In the event of a conclusion of the contract before the expiry of the waiting period, the aggrieved or risky bidder may, within thirty days of the date on which he or she became aware of the conclusion of the contract, apply for the cancellation of the contract to the competent court president as referred. The application must be directed against the procuring entity, the public enterprise or the procuring authority referred to in section 72 of the Public Procurement Act and against the market recipient.
The judge rejects the application:
1° if, apart from the lack of knowledge of the waiting period, the assignment was clearly carried out on a regular basis;
2° if the bidder concerned obviously does not take into consideration to be able to claim the award of the contract.
The judge may reject the application when the contract is partially or fully executed at the time of delivery.
Promulgate this law, order that it be clothed with the seal of the State and published by the Belgian Monitor.
Given in Brussels on 16 June 2006.
ALBERT
By the King:
The Prime Minister,
G. VERHOFSTADT
Seal of the state seal:
The Minister of Justice,
Ms. L. ONKELINX
____
Note
(1) Session 2005-2006.
House of Representatives:
Parliamentary document. - Text adopted in plenary and transmitted to the Senate, No. 51-2461/1.
Senate:
Parliamentary documents. - Project transmitted by the House of Representatives, No. 3-1690/1. - Report, number 3-1690/2. - Text adopted in plenary and subject to Royal Assent, No. 3-1690/3.