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17 JUIN 2016. - Concession contracts Act (1)

PHILIPPE, King of the Belgians,
To all, present and to come, Hi.
The Chambers adopted and We sanction the following:
PART 1^er. - Introductive provision and definitions
CHAPTER 1^er. - Introductive provision and definitions
Introductory provision
Article 1^er. § 1^er. This Act regulates a matter referred to in Article 74 of the Constitution.
It partially transposes:
1° Article 7 of Directive 2009/52/EC of the European Parliament and of the Council of 18 June 2009 providing minimum standards for sanctions and measures against employers of third-country nationals in irregular residence;
2° Article 6 of Directive 2012/27/EU of the European Parliament and of the Council of 25 October 2012 on energy efficiency, amending Directives 2009/125/EC and 2010/30/EU and repealing Directives 2004/8/EC and 2006/32/EC;
3rd Directive 2014/23/EU of the European Parliament and of the Council of 26 February 2014 on the award of concession contracts;
§ 2. This Act sets out the basic principles and rules applicable to the procurement and enforcement of the concessions referred to in Article 3.
Definitions
Art. 2. For the purposes of this Act:
1° procuring power:
(a) the State;
(b) Regions, communities and local authorities;
(c) public law bodies and individuals, regardless of their form and nature, which, at the time of the decision to launch a concession:
i. were created to meet specific needs of general interest other than industrial or commercial, and
ii. have legal personality, and
iii. depend on the State, the Regions, the Communities, the local authorities or other bodies or persons under this item (c) in one of the following ways:
- or their activities are financed mainly by the State, the Regions, the Communities, the local authorities or other bodies or persons under this item (c);
- either their management is subject to control of the State, the Regions, the Communities, the local authorities or other bodies or persons under this item (c);
- more than half of the members of their administrative, executive or supervisory bodies shall be designated by the State, the Regions, the Communities, the local authorities or other bodies or persons under this item (c);
(d) associations formed by one or more procuring powers referred to in 1°, (a), (b), or (c);
2° public enterprise: any enterprise carrying on an activity referred to in Schedule II to 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:
a) hold the majority of the capital of the enterprise, or
(b) have a majority of votes attached to the shares issued by the company, or
(c) may designate more than half of the members of the corporate administrative, management or oversight body;
3° person with special or exclusive rights: the person who operates on the basis of special or exclusive rights granted for the exercise of an activity referred to in Schedule II.
Special or exclusive rights are the rights granted by the competent authority by means of any legislative, regulatory or administrative provisions that have the effect of having to reserve to a single operator (exclusive right) or to several operators (special rights) the exercise of an activity referred to in Schedule II to this Act and to substantially affect the ability of other operators to exercise this activity.
The rights granted through a procedure that have been advertised appropriately and according to objective criteria do not constitute "special or exclusive rights" within the meaning of this item. These procedures include:
(a) procurement or concession contract procedures with prior competition, in accordance with the Public Procurement Act, the Defence and Security Act or this Act;
(b) procedures under other legal acts of the European Union, listed in Schedule III to this Act, which guarantee sufficient pre-clearance for the granting of authorizations on the basis of objective criteria;
4° procuring entity: the procuring authorities when granting a concession in the course of one of the activities referred to in Schedule II, the public enterprises referred to in point 2° and persons entitled to special or exclusive rights referred to in point 3°;
5° adjudicator: the procuring powers that do not carry out an activity referred to in Appendix II and the procuring entities referred to in point 4°;
6° economic operator: any natural or legal person or public entity, or grouping of such persons or entities, including temporary associations of enterprises, which offers the execution of works or works, the provision of goods or the provision of services on the market;
7° concessions: concessions of work or services within the meaning of points (a) and (b):
(a) concession of work: a contract concluded in writing and in an expensive manner by which one or more adjudicators entrust the execution of work to one or more economic operators, the counterparty consisting of either only in the right to exploit the works that are the subject of the contract or in that right accompanied by a price.
i. By "work execution" means: either the execution, either jointly or the design and execution of work relating to one of the activities referred to in Appendix I or a work, or the realization, by any means, of a work that meets the requirements defined by the buyer that exerts a decisive influence on the type of work or the design of the work;
ii. By "work" means the result of a set of building or civil engineering works intended to perform an economic or technical function by itself; or
(b) concession of services: a contract entered into in writing and in a cost-effective manner by which one or more adjudicators entrust the provision and management of services other than the performance of work referred to in (a) to one or more economic operators, the consideration consisting of either only in the right to operate the services that are the subject of the contract or in that right accompanied by a price.
The award of a work concession or service concession involves the transfer to the concessionaire of an operating risk related to the operation of such work or services, including the risk associated with the application, the risk associated with the offer or both. The concessionaire is deemed to assume the risk of exploitation when, under normal operating conditions, it is not certain to depreciate the investments it has made or the costs it has incurred during the operation of the works or services that are the subject of the concession. The share of risk transferred to the concessionaire involves real exposure to market hazards, such as any estimated potential loss that would be borne by the concessionaire should not be purely nominal or negligible;
8° candidate: an economic operator who has requested to participate or has been invited to participate in a concession procedure;
9th bidder: an economic operator who offers an offer;
10° concessionaire: the economic operator with which a concession contract was concluded;
11° written or in writing: any set of words or figures that may be read, reproduced, and then communicated, including information transmitted and stored by electronic means;
12° electronic means: electronic processing equipment (including digital compression) and storage of data transmitted, routed and received by cable, by microwave, optical means or other electromagnetic means;
13° concession document: any document provided by the buyer or to which he refers in order to describe or define the characteristics of the concession or the procurement procedure, including the notice of concession, the technical and functional specifications, the terms of reference proposed for the concession, the format of presentation of the documents by the candidates and bidders, the information on generally applicable obligations and any other additional documents;
14° innovation: the implementation of a new or substantially improved product, service or process, including but not limited to production or construction processes, a new method of marketing or a new organizational method in the practices, organization of the workplace or the external relations of the company, which allows, inter alia, to meet societal challenges or supports the Europe 2020 strategy;
15° passation: procedure for granting a concession that includes, where applicable, the following aspects: pre-market consultation, publication, selection, attribution and conclusion of the concession;
16th award of the concession: the decision taken by the buyer designating the successful bidder;
17th conclusion of the concession: the birth of the contractual relationship between the buyer and the concessionaire;
18° Common Vocabulary for Public Procurement: the reference nomenclature applicable to public procurement and used in concessions, adopted by Regulation (EC) No 2195/2002 of the European Parliament and of the Council of 5 November 2002 on the common vocabulary for public procurement, in abbreviated "CPV";
19° lot: the subdivision of a concession likely to be assigned separately, in principle for a separate execution;
20° option: an accessory element not strictly necessary for the execution of the concession that is introduced either at the request of the buyer or at the initiative of the bidder;
21st Public Procurement Act: the Public Procurement Act of 17 June 2016;
22° Law on Defence and Security: the Law of 13 August 2011 on Public Procurement and Certain Labour Markets, Supplies and Services in the Field of Defence and Security;
23° Treaty: the Treaty on the Functioning of the European Union;
24th Member State: a Member State of the European Union or, to the extent that the European Economic Area Agreement provides, a State signatory to this Agreement.
PART 2. - Scope of application
CHAPTER 1^er. - Principles
Art. 3. § 1^er. This Act applies to the transfer and enforcement of work and services concessions.
However, with respect to service concessions, this Act applies only to concessions of a value equal to or greater than the threshold established by the King.
In addition, with respect to concessions of work by persons entitled to special or exclusive rights or by public enterprises acting outside the scope of their stains of public services as defined by law, decree or order, this Act applies only to concessions of a value equal to or greater than the threshold established by the King.
The thresholds referred to in paragraphs 2 and 3 are identical.
A non-limitative list of public law bodies referred to in Article 2.1°, (c) and public enterprises referred to in Article 2, 2°, is established by the King;
The value to be taken into account is the estimated value referred to in section 35.
§ 2. This Act does not apply to agreements, decisions or other legal instruments that organize the transfer of competencies and responsibilities for the performance of public missions between procuring authorities or procuring entities or groups of procuring authorities or procuring entities, and that do not provide for the remuneration of contractual benefits.
§ 3. This Act does not apply to non-economic general interest services.
CHAPTER 2. - Exclusions
Services concessions granted on the basis of an exclusive right
Art. 4. This Act does not apply:
1° to concessions of services attributed to a procuring power or an association of procuring powers, on the basis of an exclusive right;
2° to concessions of services attributed to an economic operator on the basis of an exclusive right granted in accordance with the Treaty on the Functioning of the European Union and the legal acts of the Union establishing common rules concerning access to the market for the activities referred to in Annex II. However, where EU sectoral regulations do not provide for sectoral transparency obligations, section 44 applies.
When an exclusive right is granted to an economic operator for the exercise of one of the activities referred to in Schedule II, the authority having granted this right shall inform the contact point referred to in Article 163, § 2, of the Law of 17 June 2016 on public procurement as soon as possible, so that the latter may inform the European Commission within one month of the granting of this exclusive right;
3° to lottery services concessions under CPV code 92351100-7 issued by a Member State to an economic operator on the basis of an exclusive right. The granting of such an exclusive right is subject to publication in the Official Journal of the European Union.
The exclusive rights referred to in this article do not agree in the meaning specified in Article 2, 3°.
Concessions regulated by other regulations
Art. 5. § 1^er. This Act does not apply to air transportation concessions based on the granting of an operating licence within the meaning of Regulation (EC) No. 1008/2008 of the European Parliament and the Council and to public passenger transport concessions by rail and road within the meaning of Regulation (EC) No. 1370/2007.
§ 2. This Act does not apply either:
1° to concessions to be made by buyers in accordance with procedures different from those set out in this Act and established by:
(a) a legal instrument establishing obligations under international law, such as an international agreement concluded, in accordance with the European Treaties, between a Member State and one or more third countries or subdivisions thereof, covering work, supplies or services intended for the joint realization or operation of a project by their signatories. The adjudicators shall communicate any legal instrument referred to at the point of contact referred to in Article 163, §2, of the Public Procurement Act, which shall inform the European Commission.
(b) an international organization.
2° to concessions that the buyer passes in accordance with market rules provided by an international organization or an international financial institution, where the concessions concerned are fully financed by the said organization or institution. With respect to concessions co-financed essentially by an international organization or an international financial institution, the parties agree on applicable procurement procedures.
This subsection does not apply to past concessions in the area of defence and security.
Exclusion of certain services
Art. 6. Not subject to the application of this Act, any concessions of services to:
1° the acquisition or lease, irrespective of the financial terms, of land, existing buildings or other immovable property or which relate to rights to such property;
2° the purchase, development, production or co-production of program material for audiovisual or radio media services that are attributed by audiovisual or radio media service providers, or concessions for broadcast times or the provision of programs that are attributed to audiovisual or radio media service providers;
3° arbitration and conciliation services;
4° one of the following legal services:
a) the legal representation of a client by a lawyer within the meaning of Article 1^er of Council Directive 77/249/EEC of 22 March 1977 to facilitate the effective exercise of the free provision of services by lawyers, as follows:
i. arbitration or conciliation in a Member State, a third country or an international arbitration or conciliation proceeding
ii. proceedings before the public courts or authorities of a Member State, a third country or before international courts or institutions;
(b) the legal advice provided for any procedure referred to in this point, under (a), or where there are tangible signs and high probabilities that the issue on which the notice is brought shall be the subject of such proceedings, provided that the notice is issued by a lawyer within the meaning of Article 1^er of Directive 77/249/EEC referred to above;
(c) certification and authentication services to be provided by notaries;
(d) legal services provided by legal administrators or designated guardians or other legal services whose service providers are designated by a jurisdiction of the member State concerned or by the law to carry out specific tasks under the control of these courts;
(e) other legal services that, in the Kingdom, are linked, even occasionally, to the exercise of public power;
5° of the financial services related to the issuance, sale, purchase or transfer of securities or other financial instruments within the meaning of Directive 2004/39/EC of the European Parliament and of the Council of 21 April 2004 concerning the markets of financial instruments, amending the directives 85/611/EEC and 93/6/EEC and Directive 2000/12/EC and repealing Directive 93/22/EEC, as well as the services provided by central banks or banks
6° loans whether or not they are related to the issuance, sale, purchase or transfer of securities or other financial instruments;
7° of civil defence, civil protection and risk prevention services provided by non-profit organizations or associations that fall under the following VPA codes: 75250000-3, 75251000-0, 75251100-1, 75251110-4, 75251120-7, 75252000-7, 75222000-8, 98113100-9 and 85143000-3, with the exception of ambulance services
8° services related to political campaigns, under the CPV codes 79341400-0, 92111230-3 and 92111240-6, attributed by a political party in the context of an election campaign;
9° research and development services. However, this Act applies to service concessions under CPV codes 73000000-2 to 73120000-9, 73300000-5, 73420000-2 and 73430000-5, provided that the following two conditions are met:
(a) their results belong exclusively to the buyer for use in the exercise of their own activity and
(b) the service delivery is fully paid by the buyer.
In the provision referred to in 2°, the terms "audio-visual media services" and "media service providers" have the same meaning as in sections 1.3/1 and 1.6/1 of the Act of 30 March 1995 concerning electronic television networks and services, and audio-visual media services in the bilingual region of Brussels-Capital, article 2, 26° and 27°, of the decree of the Flemish Community on 27 March 2009 relating to broadcasting^er48° and 49°, of the Coordinated Decree of the French Community of 26 March 2009 on audiovisual media services. The term "program" has the same meaning as in Article 1^er5., of the Act of 30 March 1995 referred to above, Article 2, 31°, of the decree of the Flemish Community of 27 March 2009 referred to above and Article 1^er36°, of the co-ordinated decree of the French Community of 26 March 2009, but it also includes radio programmes and radio programmes. In addition, for the purposes of this provision, the term "programme material" has the same meaning as the term "program".
Specific exemptions in the field of water
Art. 7. This Act does not apply to any concessions to:
1° the provision or operation of fixed networks to provide service to the public in the field of the production, transport or distribution of drinking water;
2° the supply of these drinking water networks.
This Act also does not apply to concessions relating to one or both of the following objects, where they relate to an activity referred to in paragraph 1^er :
1° of hydraulic engineering, irrigation or drainage projects, 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 irrigation or drainage facilities; or
2° the evacuation or treatment of waste water.
Specific exclusions
in the field of electronic communications
Art. 8. This Act does not apply to concessions that are primarily intended to allow the procuring authorities to make public electronic communications networks available or operated or to provide one or more electronic communications services to the public.
For the purposes of this section, the notions "public electronic communications networks" and "electronic communications services" have the same meaning as in the Act of 13 June 2005 on electronic communications.
Concessions between procuring powers
Art. 9. § 1^er. A concession between a procuring authority and a legal entity governed by private law or public law is not subject to the application of this Act, where all the following conditions are met:
1° the procuring authority shall exercise control over the legal person concerned similar to that exercised on his or her own services;
2° more than eighty percent of the activities of this controlled legal entity are carried out as part of the execution of the tasks entrusted to it by the procuring authority that controls it or by other legal persons that it controls; and
3° the controlled legal person does not have direct participation of private capital, with the exception of forms of private capital participation without the ability to control or block required by national legislation, in accordance with European treaties, which do not allow for a decisive influence on the controlled legal person.
A procuring authority shall be deemed to exercise control over a legal entity similar to that exercised on its own services, within the meaning of the first paragraph, point 1°, if it exerts a decisive influence on both the strategic objectives and the important decisions of the controlled legal entity.
This control may also be exercised by another legal entity, which is itself controlled in the same way by the procuring power.
§ 2. Exclusion under paragraph 1^er applies also where a controlled legal person who is a procuring authority passes a concession with the procuring power that controls it, or another legal person controlled by the same procuring power, provided that the legal person with whom the concession has passed does not have direct private capital participation, except for forms of private capital participation without the capacity of decisive control or blocking required by the national legislation, in accordance with the European Treaties,
§ 3. A procuring authority that does not exercise control over a legal person governed by private law or public law within the meaning of subsection 1^er may, however, pass a concession with that corporation without applying this Act, where all of the following conditions are met:
1° the procuring authority shall, jointly with other procuring authorities, exercise control over the legal person concerned, similar to that exercised on their own services;
2° more than eighty percent of the activities of this legal entity are carried out within the framework of the execution of the tasks entrusted to it by the procuring powers that control it or by other legal persons controlled by these same procuring powers; and
3° the controlled legal person does not have direct private capital participation except for forms of private capital participation without the ability to control or block the required by the national legislative provisions, in accordance with the European Treaties, which do not allow for a decisive influence on the controlled legal person.
For the purposes of paragraph 1^er, 1°, the procuring authorities exercise joint control over a legal entity where all the following conditions are met:
1° the decision-making bodies of the controlled legal entity are composed of representatives of all participating procuring powers, one person who may represent several participating procuring powers or all of them;
2° these procuring powers are able to jointly exert a decisive influence on the strategic objectives and important decisions of the controlled legal entity; and
3° the controlled legal person does not pursue any interests contrary to those of the procuring powers that control it.
§ 4. Percentage of activities referred to in paragraph 1^er, first paragraph, 2° and in paragraph 3, first paragraph, 2°, is determined on the basis of the average total turnover or other appropriate parameter based on activities such as the costs incurred by the legal person or the procurement authority concerned with respect to services, supplies and work for the three years preceding the grant award.
When, due to the date of creation or commencement of the activities of the corporation or the relevant procuring authority or due to a reorganization of its activities, the turnover, or another parameter based on activities such as costs, is not available for the last three years or is no longer relevant, it is sufficient to show that the calculation of activities is likely, in particular by activity projections.
Contracts exclusively between procuring authorities
Art. 10. A contract concluded exclusively between two or more procuring powers does not fall within the scope of this Act when all of the following conditions are met:
1° the contract establishes or implements a cooperation between the participating procuring authorities in order to ensure that the public services for which they are to be provided are carried out in order to achieve the objectives they have in common;
2° the implementation of this cooperation only obeys considerations of public interest; and
3° Participating procuring authorities carry out less than 20 percent of the activities involved in cooperation in the competitive market. This percentage of activities is determined in accordance with Article 9, § 4.
Activities in a third country
Art. 11. This Act does not apply to concessions granted by a procuring entity for the purposes of carrying out the activities referred to in Schedule II in a third country, under conditions not involving the physical operation of a network or geographic area within the European Union.
Concessions attributed to a related business
Art. 12. § 1^er. Notwithstanding sections 9 and 10, and to the extent that the conditions set out in subsection 2 are met, this Act does not apply to the concessions granted:
1° by a procuring entity to a related business; or
2° by a joint venture, consisting exclusively of several procuring entities for the purpose of carrying out activities referred to in Appendix II, to a business related to one of these procuring entities.
§ 2. Paragraph 1^er applies:
1° to service concessions, provided that at least four twenty percent of the total average turnover that the related company has made over the past three years, taking into account all the services carried out by the said company, comes from the provision of services to the procuring entity or other companies to which it is related;
2° to work concessions, provided that at least four twenty percent of the total average turnover that the related company has made over the past three years, taking into account all the work carried out by the said company, comes from the execution of work for the procuring entity or for other companies to which it is related.
§ 3. When, given the date on which a related business was created or started its activities, the turnover is not available for the last three years, it is sufficient for this company to show that the realization of the turnover referred to in paragraph 2, 1° or 2°, is likely, in particular by business projections.
§ 4. Where identical or similar services or works are performed or performed by more than one enterprise related to the procuring entity with which they form an economic grouping, the percentages referred to in paragraph 2 are calculated taking into account the total turnover resulting, respectively, from the provision of services or the execution of work by these related companies.
§ 5. For the purposes of this Article, "related business" means any company whose annual accounts are consolidated with those of the procuring entity in accordance with the provisions of Directive 2013/34/EU of the European Parliament and of the Council of 26 June 2013 on annual financial statements, consolidated financial statements and related reports of certain forms of business.
For entities that do not fall within the scope of the above-mentioned Directive 2013/34/EU, a company is defined as "related enterprise":
1° likely to be directly or indirectly subject to the dominant influence of the procuring entity;
2° likely to exert a dominant influence on the procuring entity; or
3° that, as well as the procuring entity, is subject to the dominant influence of another company due to the ownership, financial participation or the rules governing it.
For the purposes of this paragraph, the expression "dominant influence" has the same meaning as in Article 2, 2°.
§ 6. The procuring entities shall notify the European Commission, if so requested, of the names of the companies or joint ventures concerned, the nature and value of the concessions concerned and any other elements that the Commission considers necessary to prove that the relations between the procuring entity and the undertaking or joint venture to which the concession is attributed meet the requirements of this Article.
Concessions attributed to a joint venture
or a procuring entity that is part of a joint venture
Art. 13. Notwithstanding sections 9 and 10, and provided that the joint venture has been incorporated for the purpose of conducting the activity concerned for a period of at least three years and that the instrument constituting the joint venture stipulates that the procuring entities that make up the joint venture shall be an integral part of it for at least the same period, this Act does not apply to the concessions attributed by:
1° a joint venture exclusively made up of several procuring entities for the purposes of carrying out activities within the meaning of Appendix II to one of these procuring entities; or
2° a procuring entity to such a joint venture, of which it is part.
The procuring entities shall notify the European Commission, if so requested, of the names of the companies or joint ventures concerned, the nature and value of the concessions concerned and any other elements that the Commission considers necessary to prove that the relations between the procuring entity and the undertaking or joint venture to which the concession is attributed meet the requirements of this Article.
Activities directly exposed to competition
Art. 14. This Act does not apply to concessions for any of the activities referred to in Schedule II if it has been established by the European Commission, following an application for exemption under section 116 of the Public Procurement Act, that the activity is directly subject to competition.
Defence Concessions
and security governed by specific procedural rules
Art. 15. This Act does not apply to concessions in the areas of defence and security, within the meaning of the Defence and Security Act that are governed by:
1° the specific rules of procedure arising from an international agreement or arrangement between one or more Member States and one or more third countries;
2° the specific rules of procedure pursuant to an agreement or an international undertaking concluded, concerning the parking of troops and concerning the enterprises of a Member State or a third country;
3° the specific rules of procedure of an international organization buying for the fulfilment of its missions, or the concessions that must be attributed by a Member State in accordance with the said rules.
Other exclusions in defence and security concessions
Art. 16. This Act also does not apply to the following concessions in the areas of defence and security within the meaning of the Defence and Security Act:
1° concessions for which the application of this Act would require the Kingdom to provide information for which it would consider disclosure contrary to the essential interests of its security, or concessions whose allocation and operation are declared secret or must be accompanied by special security measures, in accordance with the legislative, regulatory or administrative provisions in force in the Kingdom, provided that the protection of the essential interests concerned cannot be guaranteed by lesser measures
2° the concessions granted under a cooperation programme based on research and development activities, carried out jointly by at least two Member States for the development of a new product and, where appropriate, the subsequent phases of the whole or part of the life cycle of that product. At the conclusion of such a programme of cooperation between Member States only, the latter shall notify the European Commission of the share of research and development expenditures in relation to the overall cost of the programme, the agreement on cost-sharing and the envisaged share of purchase for each Member State, if any;
3° concessions issued by a government to another government for work and services directly related to military equipment or sensitive equipment, or work and services for specific military purposes, or sensitive work and services;
4° concessions granted in a third country, exploited when forces are deployed outside the territory of the European Union, when operational requirements require that such concessions be concluded with economic operators located in the theatre of operations; and
5° concessions otherwise subject to an exemption under this Act.
Protection of essential interests of national security
Art. 17. This Act does not apply to concessions that are not otherwise exempted under section 16 to the extent that the protection of the essential interests of national security cannot be guaranteed by less intrusive measures, for example by imposing conditions to protect the confidentiality of the information that the buyer makes available, as part of a concession procedure provided for in this Act.
CHAPTER 3. - Concessions and joint contracts or for several activities
Mixed concessions
Art. 18. Mixed concessions for both work and services are awarded in accordance with the provisions applicable to the type of concession that constitutes the principal object of the contract.
For mixed concessions consisting, in part, of services referred to in section 34 and Appendix V and, in part, in other services, the main object is determined based on the estimated value of the respective services that is the highest.
Principles
Art. 19. § 1^er. When the different parts of a given contract are objectively inseparable, the legal regime applicable to their procurement is determined according to the principal object of the contract.
In the event that these contracts include both elements of a service concession and other contracts of supplies, the principal object is determined based on the estimated value of the respective services or supplies that is the highest.
In cases where these contracts include both elements of a public concession and contract or other elements covered by Article 346 of the Treaty or the Defence and Security Act, Article 20, § 2 applies.
§ 2. When the different parts of a given contract are objectively dissociable, paragraphs 3 or 4 apply.
§ 3. Where a contract includes elements of the concessions covered by this Act and other elements, the procuring parties may choose to award separate contracts or a single contract for the different parties.
When adjudicators choose to award separate contracts for the various parties, the decision on the legal regime applicable to the passing of each of these separate contracts is adopted on the basis of the characteristics of the various parties concerned.
Except in the cases referred to in paragraph 4 and section 20, § 3, paragraph 3, where the adjudicators choose to assign a single contract, the passation rules set out in this Act apply to the resulting mixed contract, regardless of the value of the parties that would normally fall under a different legal regime and regardless of the legal regime of which the latter would normally have raised.
§ 4. Where a joint contract includes elements of the concessions as well as elements of public procurement covered by title 2 of the Public Procurement Act or contracts covered by title 3 of the Public Procurement Act, the contract went in accordance with the provisions of title 2 or title 3 of the Public Procurement Act.
Joint contracts involving defence and security
Art. 20. § 1^er. This section applies to joint contracts that are subject to a concession covered by this Act, as well as to public contracts or other elements covered by Article 346 of the Treaty or are subject to Titles 2 or 3 or 3/1 of the Defence and Security Act.
§ 2. Where the various parts of such a contract are objectively inseparable, the contract may be awarded without applying this Act when it contains elements to which Article 346 of the Treaty applies or which relate to the essential security interests of the Kingdom. Otherwise, the buyer may choose to award the contract in accordance with this Act or the Defence and Security Act.
§ 3. When the different parts of such a contract are objectively dissociable, the buyers may choose to award separate contracts for the different parts of the contract or to assign a single contract.
When adjudicators choose to award separate contracts for the various parties, the decision on the legal regime applicable to the passing of each of these separate contracts is adopted on the basis of the characteristics of the various parties concerned.
When adjudicators choose to award a single contract, the following criteria apply to determine the legal regime that applies to the award of the resulting mixed contract:
1° where a part of a particular contract falls under Title 3/1 of the Defence and Security Act the contract may be awarded without applying this Act but in accordance with Title 3/1 of the Defence and Security Act, provided that the award of a single contract is justified by objective reasons;
2° where a part of a particular contract falls under headings 2 or 3 of the Defence and Security Act, the contract may be awarded in accordance with this Act or the Defence and Security Act, provided that the award of a single contract is justified by objective reasons.
However, the decision to award a single contract cannot be taken to exempt contracts from the application of this Act or the Defence and Security Act.
Contracts covering several activities referred to in Schedule II or under 3 of the Public Procurement Act
Art. 21. Where a contract is intended to cover several activities, one of which is attached to Schedule II of this Act, or to Title 3 of the Public Procurement Act, the applicable provisions are set out in Section 22 of this Act and Section 105 of the Public Procurement Act, respectively.
Where a contract is intended to cover a number of activities, one of which is attached to Schedule II to this Act, or to Title 3 of the Public Procurement Act, and another falls under Article 346 of the Treaty or are subject to Titles 2 or 3 or 3 or 3/1 of the Defence and Security Act, the applicable provisions are established in accordance with Article 23 of this Act and section 107 of the Public Procurement Act.
Contracts covering activities listed in Appendix II and other activities
Art. 22. § 1^er. This section applies to contracts to cover several activities, one of which falls under Schedule II.
However, where one of the activities concerned is covered by Article 346 of the Treaty or Titles 2 or 3 or 3 or 3/1 of the Defence and Security Act, Article 23 applies.
§ 2. The procuring entities may choose to award separate contracts for each of the various activities or to award a single contract.
§ 3. When procuring entities choose to award separate contracts, the decision on the rules applicable to the procurement of each of them is adopted on the basis of the characteristics of the various activities for which these contracts are intended.
§ 4. When procuring entities choose to award a single contract to cover several activities, it is subject to the rules applicable to the activity to which it is primarily intended.
In the event that it is objectively impossible to establish to which activity this single contract is primarily intended, the rules applicable to its procurement are determined as follows:
1° the concession shall be assigned in accordance with the provisions of this Act applicable to concessions granted by the procuring authorities if any of the activities to which the contract is intended shall be subject to the provisions of this Act applicable to concessions granted by the procuring authorities and the other shall be subject to the provisions of this Act applicable to concessions granted by the procuring entities;
2° the contract is awarded in accordance with title 2 of the Public Procurement Act if one of the activities to which it is intended falls under this Act and the other is title 2 of the Public Procurement Act;
3° the contract is awarded in accordance with this Act if any of the activities to which it is intended fall within this Act and the other is not subject to this Act, neither to Title 2 or to Title 3 of the Public Procurement Act.
§ 5. The choice between the award of a single contract and the award of several separate contracts shall not be made with the aim of subtracting the contract(s) from the application of this Act or, where applicable, from title 2 or 3 of the Public Procurement Act.
Contracts covering activities listed in Appendix II
and security-related activities
Art. 23. § 1^er. This section applies to joint contracts to cover several activities, one of which falls under Schedule II and another falls under Article 346 of the Treaty or Title 2 or 3 or Title 3/1 of the Defence and Security Act.
§ 2. The procuring entities may choose to award separate contracts for each of the various activities or to award a single contract.
§ 3. When procuring entities choose to award separate contracts for the various activities, the decision on the legal regime applicable to the passing of each of these separate contracts is adopted on the basis of the characteristics of each activity concerned.
§ 4. When procuring entities choose to award a single contract, the following rules determine the regime applicable to the award:
1° in the case of contracts to cover an activity under this Act and another that is covered by Article 346 of the Treaty, procuring entities may decide to award the contract without applying this Act;
2° in the case of contracts to cover an activity under this Act and an activity under heading 2 or 3 of the Defence and Security Act, the procuring entities assign the contract in accordance with this Act or in accordance with the Defence and Security Act, without prejudice to the thresholds and exclusions provided for by the Defence and Security Act.
Contracts referred to in 2° that also include contracts or other items under Article 346 of the Treaty or Title 3/1 of the Defence and Security Act may be awarded without applying this Act.
However, in order for this paragraph to be applicable, the award of a single contract must be justified by objective reasons and that the decision to award a single contract is not taken with the aim of subtracting contracts from the application of this Act.
§ 5. The choice between the award of a single contract and the award of several separate contracts may not be made for the purpose of subtracting the contract(s) from the scope of this Act or the Defence and Security Act.
PART 3. - General provisions
Principles of Equal Treatment, Non-Discrimination and Transparency
Art. 24. Adjudicators pass and execute concessions in accordance with the principles of non-discrimination and equal treatment of economic operators, and act in a transparent and proportionate manner.
To the extent that Annexes 1, 2, 4 and 5 and the General Notes relating to the European Union of Appendix I of the Agreement on Public Markets of 15 April 1994 provide, the adjudicators shall grant to the works, supplies and services and economic operators of the signatories of this Convention no less favourable treatment than that granted to the works, supplies and services and to the economic operators of the Union.
Prohibition of acts of competition
Art. 25. § 1^er. An adjudicator may not conceive a concession for the purpose of subtracting it from the scope of this Act or artificially limiting competition. Competition is considered artificially limited when a concession is designed to unduly favour or disadvantage certain economic operators or certain works, supplies or services.
§ 2. Economic operators do not make any act, enter into any agreement or agreement to distort the normal conditions of competition.
Offers or requests for participation made following such an act, agreement or agreement may be waived in accordance with the provisions of section 52.
However, if such an act, agreement or agreement has resulted in the conclusion of a concession, the buyer shall apply the measures provided for in the event of a contractual breach, unless otherwise provided by a reasoned decision.
Conflicts of interest
Art. 26. § 1^er. The adjudicator shall take the necessary measures to prevent, detect and effectively correct conflicts of interest arising in the procurement and enforcement of the concession, in order to avoid any distortion of competition, to ensure equal treatment of all economic operators and the transparency of the procurement procedure.
The concept of conflict of interest shall be in any situation in which, in the course of the procurement or execution of any public official concerned, public officer or other person related to an adjudicator in any way, as well as any person likely to influence the passation or outcome of the award, have a direct or indirect financial, economic or other personal interest that may be perceived as jeopardizing their impartiality or independence in the context of
The King may also designate other situations as conflicts of interest.
§ 2. It is prohibited for any public servant, public officer or other person related to an adjudicator in any way, to intervene in any way, directly or indirectly, in the transfer or execution of a concession, as soon as it may be, either personally or by person interposed, in a conflict of interest with a candidate or bidder. However, in exceptional circumstances, this prohibition is not applicable when it would prevent the procuring party from meeting its needs.
§ 3. The existence of a 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 in case of legal cohabitation, between the grievor, the public officer or the natural person referred to in paragraph 1^er, paragraph 2, and one of the candidates or bidders or any other natural person who exercises a power of representation, decision or control on behalf of any of them;
2° where the employee, public officer or natural person referred to in paragraph 1^er, paragraph 2, is, either by person or by person interposed, owner, co-owner or active partner of one of the candidate or bidder companies or, in law or in fact, exercises, by person interposed, a power of representation, decision or control.
The grievor, the public officer or the natural person in a conflict of interest situation must be challenged. He informs the buyer in writing and without delay.
§ 4. Where the employee, public officer or natural or legal person referred to in subsection 1^er, paragraph 2, holds, either himself or by interposed person, one or more shares or shares representing at least five per cent of the social capital of one of the candidate or bidder companies, it has the obligation to inform the buyer.
Social, environmental and labour law
Art. 27. Economic operators are required to respect and enforce by any person acting as a subcontractor at any stage, and by any person making staff available for the performance of the concession, all applicable obligations in the fields of environmental, social and labour law established by the law of the European Union, national law, collective agreements or international provisions concerning environmental, social and labour law set out in Annex IV.
Without prejudice to the application of the sanctions referred to in other legal, regulatory or treaty provisions, the procuring party who finds in the head of candidates, bidders or dealers breaches of the obligations referred to in paragraph 1^erapplies the measures provided for in articles 46 and 50 to 52 or, if the concession is already concluded, the penalties provided for in the event of a contractual breach.
Price
Art. 28. § 1^er. When the concession provides a price, it is flat, except with the exception duly motivated in the concession documents.
§ 2. This lump-sum character does not hinder the revision of the price based on specific economic or social factors, provided that a clear, precise and univocal price revision clause is provided for in the concession contract.
The price review clause must meet the price changes of the major cost and investment components. The King sets out the terms of this price review.
If the concessionaire has recourse to subcontractors, they shall, where appropriate, be subject to the revision of their prices in accordance with the terms to be determined by the King and to the extent appropriate to the nature of the benefits they perform.
Section 57 of the Act of 30 March 1976 on economic recovery measures does not apply to concession contracts or to contracts that the concessionaire enters with its subcontractors or to contracts between subcontractors.
§ 3. The lump-sum nature of the award paid by the buyer does not further impede the revision of the concession in the event of a change in the initial contract balance of the concession, without prejudice to the application of section 57. The King sets the conditions and procedure for the application of the review mechanism.
Payments
Art. 29. A payment can only be made by the buyer for a service done and accepted. In this capacity, in accordance with the provisions of the concession documents, the supplies constituted for the execution of the concession and approved by the buyer.
The King shall determine the material and procedural cases and conditions in which, by derogation from paragraph 1^er, advances may be granted by the buyer.
Economic operators
Art. 30. § 1^er. Economic operators who, under the legislation of the Member State in which they are established, are entitled to perform the service concerned cannot be rejected on the sole ground that they would be required, under the legislation or regulations applicable in Belgium, to be either natural persons or legal persons.
However, adjudicators may impose in the concession documents that legal persons are obliged to indicate, in their offer or application for participation, the names and professional qualifications of the persons who will be responsible for performing the concession.
§ 2. Groups of economic operators, including temporary associations, may participate in the procedures for the transfer of concessions, without requiring them to adopt a specified legal form to apply for participation or offer.
Adjudicators may specify, in the concession documents, how economic operator groupings must meet the conditions relating to the economic, financial or technical and professional capacity referred to in Article 48, provided that this is justified by objective reasons and proportionate.
The King may specify the terms and conditions that buyers may implement for the application of the conditions of selection referred to in section 48 to the groupings of economic operators.
All conditions for the execution of a concession imposed on such groups of economic operators, which differ from those imposed on individual participants, must also be justified by objective reasons and proportionate.
§ 3. Notwithstanding paragraphs 1^er and 2, adjudicators may require that groupings of economic operators adopt a specified legal form when the concession has been assigned to them, to the extent that this transformation is necessary for the proper execution of the concession.
Confidentiality
Art. 31. § 1^er. Applicants, participants, bidders and third parties have no access to the procedural documents, including requests for participation, offers and internal documents of the buyer, as long as the buyer has not made a decision, as the case may be, regarding the selection of candidates or participants, the evaluation of bids, the award of the concession or the waiver of the grant.
However, if the adjudicator has provided that the procurement procedure includes negotiations, it may waive paragraph 1 with a view to disclosing confidential information provided by a candidate or bidder to other participants in the proceedings, through the express and prior agreement of the candidate or bidder concerned.
§ 2. Without prejudice to the obligations relating to the advertising of assigned concessions and the information of candidates, participants and bidders, the buyer does not disclose the information that the economic operators provided to it in confidence, including any technical or commercial secrets and the confidential aspects of the offer.
The same applies to any person who, because of his or her duties or missions, is aware of such confidential information.
This paragraph does not preclude the publication of non-confidential parties of contracts concluded, including any subsequent amendments.
§ 3. The adjudicator may impose requirements on economic operators to protect the confidentiality of the information it makes available to them.
Communications
Art. 32. Without prejudice to Article 45, adjudicators shall use, except in the cases set by the King, electronic means for all communications and information exchanges with economic operators, candidates, bidders and dealers.
The chosen means of communication are commonly available and non-discriminatory, and are not intended to restrict the access of economic operators to the concession procedure. Devices and systems used to communicate electronically, as well as their technical characteristics, must be compatible with information and communication technologies generally used.
Adjudicators ensure that the integrity of the data and confidentiality of applications and offers are maintained in any communication and exchange and storage of information. They are aware of the content of the applications and offers only upon the expiry of the deadline for the submission of them.
Concessions reserved
Art. 33. An adjudicator may, in accordance with the principles of the Treaty, reserve access to the procedure for the transfer of a concession to protected workshops and economic operators whose main purpose is the social and professional integration of persons with disabilities or disadvantaged, or reserve the execution of such concessions in the context of disadvantaged employment programmes, provided that at least thirty per cent of the staff of these workshops, economic operators or programmes.
The notice of concession or, in the case of services referred to in section 34, the notice of pre-information refers to the reservation of the concession by reference to this article.
Flexible system for social services and other specific services
Art. 34. § 1^er. Only the obligations to publish a notice of pre-information and a notice of award of concessions, as set out in sections 42, paragraph 2 and 44, apply to the transfer of concessions relating to social services and other specific services listed in Schedule V to the exclusion of the other provisions of heading 4.
§ 2. The buyer consults, if possible, several economic operators of his or her choice and invites them to submit an offer within the reasonable time that he or she determines in view of the complexity of the concession and the time required to offer. It organizes a procedure in accordance with the provisions of title 3. It assigns the concession on the basis of the attribution criteria that it has fixed in the concession documents to an operator:
1° where the offer complies with the minimum requirements if the buyer has set it in the concession document;
2° that is not or cannot be excluded from participation in proceedings under Articles 50 and 51, taking into account Articles 53 and 54.
The attribution criteria are set and applied in accordance with the provisions of Article 55. However, the adjudicator must not set attribution criteria when only an operator can be consulted because there is no competition for one of the reasons referred to in section 43, § 1^erTwo.
The adjudicator treats the economic operators he invites to offer and, if necessary, to negotiate, in accordance with the principle of equal treatment. The buyer can negotiate. As part of the negotiations, the purpose of the concession and the allocation criteria are not changed. As an exception, the minimum requirements that may be set may be amended during the negotiation, in accordance with the principles of equal treatment and transparency.
The provisions of section 56 relating to the conclusion of the concession shall apply.
Estimation of the value of concessions
Art. 35. The value of a concession is the total turnover of the concessionaire generated during the term of the contract, excluding the value-added tax, estimated by the purchaser, in relation to the work and services that are the subject of the concession and to the additional supplies related to such work and services.
This estimate is valid at the time the notice of concession is sent or, where such notice is not required, at the time the invitations are sent to participate in the transfer of the concession.
For the purposes of section 3, if the value of the concession at the time of the award is greater than twenty percent at its estimated value, the appropriate value is the value of the concession at the time of the award.
The value of the concession is calculated using an objective method specified in the concession documents. In calculating the estimated value of the concession, buyers take particular account of:
1° the value of any form of option and any extensions of the duration of the concession;
2° revenues from the payment of royalties and fines by users of works or services, other than those collected on behalf of the buyer;
3° the payments made by the buyer or any other public authority or any financial benefit in any form granted by one of them to the concessionaire, including compensation due to respect for a public service obligation and public investment subsidies;
4° the value of subsidies or any other financial benefit, in any form, granted by third parties for the operation of the concession;
5° revenues derived from any sale of assets that are part of the concession;
6° the value of all supplies and services made available to the concessionaire by the adjudicators, provided that such supplies and services are necessary for the performance of the work or the provision of services;
7° any premiums or payments for the benefit of candidates or bidders.
Additional rules relating to the estimated value of concession contracts
Art. 36. The choice of method used to calculate the estimated value of a concession cannot be made with the intention of subtracting it from European advertising or the application of this Act. A concession may not be subdivided in such a way as to exempt it from European advertising or to prevent it from falling within the scope of this Act unless objective reasons justify it.
Where a proposed work or service may result in the allocation of separate batch concessions, the estimated aggregate value of all of these lots shall be taken into account in determining the threshold of advertising or application of this Act.
Where the cumulative value of the lots is equal to or greater than the threshold referred to in Article 3, § 1^er, paragraph 4, European advertising shall apply, as well as the other provisions of this Act when this threshold determines its scope and for each batch.
Duration of concessions
Art. 37. § 1^er. The duration of the concessions is limited. The adjudicator considers the duration of the work or services requested.
§ 2. For concessions of more than five years, the maximum duration of the concession does not exceed the reasonable time expected by the concessionaire to recover the investments made for the operation of the works or services with a return on the invested capital, taking into account the investments necessary to achieve the specific contractual objectives.
Investments taken into account for the purposes of calculation include both initial and concessional investments.
PART 4. - Provisions applicable to the transfer of concessions
CHAPTER 1^er. - Principles
Organization of the procurement procedure
Art. 38. The adjudicator shall freely organize the procedure that leads to the choice of the concessionaire subject to compliance with the provisions of this Act.
The concession procedure shall comply with the principles set forth in articles 24, paragraph 1^er and 25, paragraph 1^er. In particular, in the course of the grant proceedings, the buyer does not discriminate in any way provide information that may benefit certain candidates or bidders from others.
CHAPTER 2. - Preparation
Consultations préalables
Art. 39. Prior to the initiation of a procurement procedure, the buyer may undertake market consultations with a view to defining the minimum requirements of the concession, its value and its duration, preparing the procedure for the transfer of the concession and informing the economic operators of its projects and its requirements.
For this purpose, the buyer may, for example, request or accept the advice of independent experts, public or private bodies or market actors.
Pre-consultations may be used for the planning and conduct of the procurement process, provided that they do not have the effect of distorting competition and leading to a violation of the principles of non-discrimination and transparency.
Prior participation of a candidate or bidder
Art. 40. § 1^er. When a candidate or bidder, or a company related to a candidate or bidder, informed and advised the buyer, whether or not in the context of section 39, or otherwise participated in the preparation of the concession or its procurement procedure, the buyer shall take appropriate measures to ensure that competition is not distorted by the participation of the bidder or bidder.
"Related business" within the meaning of this section means any business on which a person referred to in paragraph 1^er may directly or indirectly exert a dominant influence, or any company that may exert a dominant influence on that person or that, like that, is subject to the dominant influence of another company, by virtue of the ownership, financial participation or the rules governing it.
The dominant influence is presumed when a business, directly or indirectly, with respect to another business:
1° holds the majority of the company's equity or
2° has the majority of votes attached to the shares issued by the company or
3° may designate more than half of the members of the board of directors, management or supervision of the company.
§ 2. The candidate or bidder concerned is excluded from the proceedings only if there are no other means of ensuring compliance with the principle of equal treatment. However, before being excluded, the candidate or bidder must have the opportunity to prove by means of a written justification that his or her prior participation is not likely to distort competition.
Functional and technical specifications
Art. 41. § 1^er. Technical and functional specifications define the required characteristics of the work or services that are the subject of the concession contract.
They are listed in the concession documents.
These characteristics may also refer to the specific process of production or execution of the requested work or services, provided that they are related to the object of the contract and proportionate to its value and objectives.
These features may include quality levels, environmental, energy and climate performance levels, design for all uses, including access to persons with disabilities and compliance control, results, safety or dimensions, terminology, symbols, testing and testing methods, marking and labelling, or instructions for use.
For all work or services intended for use by natural persons, technical specifications are developed, except in duly justified cases, to take into account accessibility criteria for persons with disabilities or the concept of design for all users. When binding accessibility requirements were adopted by a legal act of the European Union, the technical specifications are defined in relation to these standards.
§ 2. The technical specifications give economic operators equal access to the procurement procedure and do not create unjustified obstacles to the opening of concessions to competition.
§ 3. Technical and functional specifications may not refer to a specific manufacturing or source or to a particular process that characterizes the products supplied or the services performed by a specific economic operator, or to a trademark, patent, type, specific production that would promote or eliminate certain companies or products.
This reference or reference is permitted, on an exceptional basis, only:
1° where a sufficiently precise and intelligible description of the object of the contract is not possible;
2° when justified by the object of the contract.
In the cases referred to in 1°, the reference or reference shall be accompanied by the words "or equivalent".
§ 4. Adjudicators do not reject an offer on the ground that the work and services offered are not in accordance with the technical and functional specifications to which they referred, provided that the bidder proves in its offer, by any appropriate means, that the solutions it proposes meet equivalent to the technical and functional specifications.
CHAPTER 3. - Advertising and transparency
Notice of concession
Art. 42. Adjudicators issue a notice of concession, except in the cases referred to in section 43.
Adjudicators wishing to make a concession for the services referred to in section 34 make their intention known by publishing a notice of pre-information.
The King shall determine the information contained in the notices of concession and pre-information referred to in paragraph 1^er and 2 and their terms of publication both at the Belgian and European level.
Duties to publication
Art. 43. § 1^er. By derogation from section 42, paragraph 1^er, adjudicators are not required to publish a notice of concession in the following cases:
1° where the estimated value of the concession of work passed by a procuring authority or a public enterprise acting in the course of its public service duties does not exceed the amount determined by the King, excluding the value added tax;
2° where work or services objects of the concession can only be provided by a particular economic operator for one of the following reasons:
(a) the purpose of the concession is to create or acquire a work of art or a unique artistic performance;
(b) there is no competition for technical reasons;
(c) the existence of an exclusive right;
(d) protection of intellectual property rights and exclusive rights other than those defined in Article 2, 3°.
Exceptions set out in points (b) to (d) apply only when there is no alternative or reasonable substitution solution and the absence of competition does not result from an artificial restriction of the terms of the concession;
3° where no application for participation or any application for appropriate participation, no offer or offer has been filed in response to an earlier notice of concession, provided that the original terms of the concession contract are not substantially amended and that a report is communicated to the European Commission at its request. An offer is not considered appropriate as long as it is unrelated to the concession because it is clearly not able, without substantial modifications, to meet the needs and requirements of the buyer specified in the concession documents. An application for participation is not considered appropriate if the candidate concerned is or may be excluded under sections 50, 51 or 52 or fails to meet the selection conditions established by the buyer under section 48, or when an application for participation contains an offer considered inappropriate for the reason mentioned above.
§ 2. In the case referred to in paragraph 1^er, 1°, the procuring authority or the public enterprise shall apply the procedure provided for in this paragraph. Only the provisions of this title 4 referred to in this paragraph shall apply.
The procuring authority or the public enterprise consults, if possible, several operators of its choice and invites them to submit an offer within the reasonable time that it determines taking into account the complexity of the concession and the time required to offer. It organizes a procedure in accordance with the provisions of title 3. It assigns the concession on the basis of the attribution criteria that it has set in the concession document to an operator:
1° where the offer complies with the minimum requirements if the buyer has set it in the concession document;
2° that is not or cannot be excluded from participation in proceedings under Articles 50 and 51, taking into account Articles 53 and 54;
3° that meets the selection conditions if the buyer has set it in the concession document.
If the procuring authority or public enterprise determines conditions of selection, it shall do so in accordance with the provisions of Article 48.
The attribution criteria shall be set and applied in accordance with the provisions of Article 55.
However, the procuring authority or the public enterprise must not set criteria for attribution when only an operator can be consulted because there is no competition for any of the reasons referred to in paragraph 1^erTwo.
It treats the economic operators that it invites to offer and, if necessary, to negotiate, in accordance with the principle of equal treatment. The procuring authority or public enterprise may negotiate. As part of these negotiations, the purpose of the concession, the possible selection criteria and the allocation criteria are not changed. As an exception, the minimum requirements that may be set may be amended during the negotiation, in accordance with the principles of equal treatment and transparency.
The provisions of section 56 relating to the conclusion of the concession shall apply.
The procuring authority or public enterprise publishes a notice of award of concession at the Belgian level, in accordance with Article 44, § 2.
§ 3. In the case referred to in paragraph 1^er, 2°, the buyer may directly negotiate with the sole operator, in accordance with the provisions of Title 3 and the provisions of Title 4, with the exception of Articles 48 and 55.
§ 4. In the case referred to in paragraph 1^er, 3°, the buyer shall arrange a new procedure for the transfer of the concession in accordance with the provisions of title 3 and the provisions of title 4, without the obligation to publish a new notice of concession.
Notice of grant award
Art. 44. § 1^er. At the latest forty-eight days after the conclusion of the concession, the adjudicators send for publication a notice of grant award relating to the results of the grant award procedure.
For concessions referred to in section 34, however, notices of assignment may be consolidated by quarter. In this case, consolidated notices are sent no later than thirty days after the end of each quarter.
§ 2. The King determines the mentions contained in the notices of grant award and their terms of publication both at the Belgian and European level.
§ 3. Certain information on the transfer of concessions may not be published in the event that their disclosure would impede the application of laws, would be contrary to the public interest or would prejudice the legitimate commercial interests of an economic operator in particular, public or private, or could adversely affect fair competition between economic operators.
Provision of concession documents electronically
Art. 45. Adjudicators offer by electronic means free, unrestricted, direct and complete access to concession documents from the date of publication of a notice of concession or, where the notice of concession does not include an invitation to offer, the date of sending an invitation to offer. The text of the notice of concession or invitation specifies the internet address to which the concession documents are accessible.
Where, in circumstances duly justified, for exceptional security reasons, technical reasons or because of the particularly sensitive nature of commercial information requiring a very high level of protection, free, unrestricted, direct and complete access by electronic means to certain concession documents cannot be offered, the adjudicators indicate in the notice or invitation to submit an offer that the concession documents concerned will be transmitted by other means than electronic means and These other means must also offer free access.
As long as the application has been made in a timely manner, the award-winning bidders or relevant services shall provide to all applicants or bidders participating in the concession proceedings additional information on concession documents no later than six days before the deadline for receipt of tenders.
CHAPTER 4. - Licensing of concessions
Procedural guarantees
Art. 46. § 1^er. The concessions are awarded on the basis of the award criteria established by the buyer in accordance with section 55, provided that all the following conditions are met:
1° the offer is regular and is in particular in accordance with the minimum requirements set, if any, by the buyer in the concession documents. The minimum requirements contain the characteristics and conditions, including technical, physical, functional or legal, that any offer is required to complete or possess;
2° the bidder shall meet the selection conditions set by the buyer in the concession document in accordance with section 48 and, where applicable, the objective and non-discriminatory criteria referred to in paragraph 3;
3° the bidder is not excluded from participation in the procurement proceedings under Articles 50 to 52 and subject to Article 53.
When the buyer finds that the best offer on the basis of the attribution criteria provides conditions for the performance or operation of the concession that do not comply with the obligations applicable in the fields of environmental, social or labour law referred to in section 27, he decides not to assign the concession to the bidder who has given the offer, provided that it is an obligation that is also criminally punished. In other cases where it finds that this offer does not meet the above-mentioned obligations, it may proceed in the same manner.
The King may determine the additional terms and conditions for the verification of the regularity referred to in paragraph 1^er1°.
§ 2. Adjudicators are required to resume in the Notice of Concession a description of the concession as well as qualitative selection conditions. They resume in the Notice of Concession, in the invitation to offer or in other concession documents, the minimum requirements as well as a description of the attribution criteria.
§ 3. The adjudicator may limit the number of candidates or bidders to an appropriate level, provided that this is done in a transparent and objective and non-discriminatory manner. The number of candidates or bidders invited to continue the procurement process is sufficient to guarantee real competition.
§ 4. The adjudicator shall communicate to all participants the description of the organization of the proposed procedure as well as an indicative deadline for tendering. Any modifications shall be communicated to all participants and, to the extent that they relate to elements in the notice of concession, to all economic operators.
§ 5. The adjudicator shall guarantee an adequate consignation of the steps of the procurement procedure according to the means that it considers appropriate, subject to the provisions of Article 31, §§ 1^er and 2, on confidentiality.
§ 6. The adjudicator is free to organize a negotiation with bidders. The purpose of the concession, minimum requirements and allocation criteria are not changed during the negotiation process.
§ 7. The King may supplement and specify the provisions of this article, including the minimum content of the concession documents.
Receiving deadlines for participation requests and offers
Art. 47. In setting the deadlines for receipt of requests for participation or offers, adjudicators take into account, in particular, the complexity of the concession and the time required to prepare offers or requests for participation, without prejudice to the minimum deadlines set out in this article.
Where requests for participation or offers can be submitted only after a site visit or after consultation on site of additional documents to the concession documents, the deadlines for receipt of requests for participation or offers are set in such a way that all the economic operators concerned may be aware of all the information necessary for the formulation of their requests for participation or offers and are, in any event, superior to the minimum deadlines set out in paragraphs 3 and 4.
The minimum deadline for receipt of requests for participation, whether or not accompanied by offers, for the concession is at least thirty days from the date of the notice of concession.
When the procedure takes place in successive phases, the minimum deadline for receiving initial offers is twenty-two days from the date of the invitation to tender.
The deadline for receipt of bids may be reduced by five days if the buyer agrees that bids can be submitted electronically in accordance with section 32.
Selection conditions
Art. 48. § 1^er. Adjudicators set in the Notice of Concession the conditions for the selection of candidates or bidders. These conditions are:
1° relating to the professional or technical capacity and/or economic or financial capacity of candidates or bidders;
2° non-discriminatory and proportionate to the purpose of the concession;
3° linked and proportioned to the need to guarantee the concessionaire's ability to operate the concession, given the purpose of the concession and the objective of ensuring effective competition.
Within the above-mentioned limits, buyers may include environmental or social selection conditions.
§ 2. Adjudicators indicate in the Notice of Concession the supporting documents that applicants or bidders must provide to establish that they meet the selection conditions.
They impose the use of a preliminary evidence document and ensure, in an impartial and transparent manner, in accordance with the principle of equal treatment:
1° that the selected candidates meet the selection conditions and, where applicable, the rules and criteria to limit the number of selected candidates; and
2° that the concession is not attributed to a bidder who does not meet the selection conditions.
§ 3. In accordance with the principle of equal treatment, applicants may complete, specify or correct the information and documents that candidates or bidders provide to them in the application for participation or offer, to establish that they meet the selection conditions.
§ 4. The King may specify the terms and conditions relating to the setting of the selection conditions, as well as those relating to the establishment of the evidence that it is satisfied with the selection conditions.
Third party capacity
Art. 49. In order to meet the qualitative selection conditions set out in Article 48, an economic operator may, if any and for a particular concession, rely on the capabilities of other entities, regardless of the legal nature of the bonds that unite them. If an economic operator wishes to use the capabilities of other entities, it provides the buyer with the evidence that it will have, throughout the concession, the necessary means, for example by producing the commitment of these entities to this effect. With respect to financial capacity, the buyer may require that the economic operator and other entities in question be jointly responsible for the performance of the contract.
Under the same conditions and subject to the same reservation, a group of economic operators referred to in Article 30 may use the capacity of members of the group or other entities.
Mandatory grounds for exclusion from criminal conviction
Art. 50. § 1^er. Except in the case where the candidate or bidder demonstrates, in accordance with section 53, that they have taken sufficient measures to demonstrate their reliability and unless mandatory requirements of general interest, the procuring authority excludes, at any stage of the procurement proceedings, a candidate or bidder of participation in the proceedings, when he or she has established or is informed in any other manner that the candidate or bidder has been convicted of the following conviction
1st participation in a criminal organization;
2° corruption;
3° fraud;
4° terrorist offences, offences related to terrorist activities or incitement, complicity or attempted crime;
5° money laundering or financing of terrorism;
6° child labour and other forms of human trafficking;
7° occupation of third country nationals in illegal residence, however, for the latter point, that this is a concession that has passed for other activities than those referred to in Appendix II.
The King may specify the above-mentioned offences.
Derogation from paragraph 1^er, the procuring authority excludes the candidate or bidder who has held nationals of third countries in an illegal stay, even in the absence of a forced conviction, from the moment that the offence was found by an administrative or judicial decision, including by a written notification pursuant to article 49/2 of the Social Criminal Code. This exemption does not preclude the possibility, referred to in section 53, for the candidate or bidder to invoke corrective measures as appropriate.
The obligation to exclude the candidate or bidder also applies where the person convicted by final judgment is a member of the administrative, management or oversight body of the candidate or bidder or holds a representation, decision or control authority within the applicant or bidder. In the event of an offence referred to in paragraph 3 and in the absence of the above-mentioned final judgment, the same exclusion obligation shall be applied, where the person concerned is indicated in an administrative or judicial decision, as a person in the head of which an offence has been found in the occupation of nationals of third countries in illegal residence, and who is a member of the administrative, management or supervision body of that candidate or
§ 2. Exclusions referred to in paragraph 1^erParagraph 1^er, apply only for a period of five years from the date of the judgment or, for the case referred to in point 7, from the end of the offence.
When they are in a mandatory exclusion situation in the aftermath of the final date of the introduction of requests for participation or the delivery of offers, economic operators may not, except in exceptional cases provided for in paragraph 1^erParagraph 1^er, participate in concessions.
§ 3. Public enterprises and persons with special or exclusive rights may apply this article. In this case, the provisions of sections 53 and 54 also apply, where applicable.
Mandatory exclusions related to tax and social security obligations
Art. 51. § 1^er. Except as peremptory requirements of general interest and subject to the cases referred to in paragraph 3, the procuring authority shall, at any stage of the procurement proceedings, exclude a candidate or bidder who fails to meet its obligations with respect to the payment of taxes and taxes or social security contributions unless:
1° where the unpaid amount does not exceed the amount to be fixed by the King; or
2° where the candidate or bidder may demonstrate that he or she has in respect of a procuring power or a public enterprise one or more of the certain receivables, payable and free of any commitment to third parties. These claims amount at least to an amount equal to that for which it is late to pay tax or social debts. The latter amount is reduced by the amount fixed by the King in execution of the 1° provision.
When it finds that tax and social debt exceeds the amount referred to in paragraph 1^er, 1°, the procuring authority requests the candidate or bidder if it is in the situation referred to in paragraph 1^erTwo.
If the applicant finds that the applicant or bidder does not meet its obligations relating to the payment of taxes and taxes or social contributions, the procuring authority gives the opportunity to any economic operator to put themselves in good standing. It gives the economic operator five working days to provide proof of its regularization. This regularization can only be operated at one recovery.
§ 2. The King determines the tax and social debts to be considered.
§ 3. This section no longer applies where the candidate or bidder has fulfilled his or her obligations by paying or by entering into a binding agreement to pay taxes and taxes or social security dues, including, where applicable, any interest that has fallen or any fines provided that such payment or conclusion of this binding agreement has taken place prior to the introduction of an application for participation or offer, depending on the type of procedure used.
§ 4. Public enterprises and persons with special or exclusive rights may apply this article. In this case, the provisions of sections 53 and 54 also apply, where applicable.
Optional exclusion criteria
Art. 52. Unless the candidate or bidder demonstrates, in accordance with section 53, that they have taken sufficient measures to demonstrate their reliability, the buyer may exclude, at any stage of the procurement proceedings, a candidate or bidder in the following cases:
1° where the procuring authority may demonstrate, by any appropriate means, that the candidate or bidder has failed to comply with the applicable obligations in the fields of environmental, social and labour law referred to in section 27;
2° where the candidate or bidder is in a state of bankruptcy, liquidation, termination of business, reorganization of the court or has been in a state of bankruptcy or is subject to liquidation, reorganization of the judiciary or any similar situation resulting from similar proceedings in other national regulations;
3° where the procuring authority may demonstrate by any appropriate means that the candidate or bidder has committed a serious professional misconduct that challenges his or her integrity;
4° where the procuring authority has sufficiently plausible elements to conclude that the candidate or bidder has committed acts, concluded conventions or made agreements to distort competition within the meaning of section 25;
5° where a conflict of interest within the meaning of Article 26 cannot be corrected by other less intrusive measures;
6° where it cannot be remedied to a distortion of competition resulting from the prior participation of candidates or bidders in the preparation of the procurement procedure referred to in Article 40 by other less intrusive measures;
7° where significant or persistent failures of the candidate or bidder were found in the performance of an essential obligation that was incumbent upon him or her in the context of an earlier concession or contract with an adjudicator within the meaning of this Act or the law public procurement, where such failures have resulted in the termination of the concession, damages, similar measures or other penalties
8° where the candidate or bidder is guilty of false declaration by providing the information required for the verification of the absence of grounds for exclusion or the satisfaction of the selection conditions, has hidden this information or is not in a position to present the supporting documentation required;
9° where the applicant or bidder has undertaken to improperly influence the decision-making process of the buyer or to obtain confidential information that may give it an undue benefit in the procurement process, or has provided by negligence misleading information that may have a determinant influence on exclusion, selection or attribution decisions;
10° in the case of concessions in the field of defence and security within the meaning of the law of defence and security, it is established by any means of evidence, if any by protected data sources, that the candidate or bidder does not have the reliability necessary to avoid breaches of Belgium's security.
Exclusions to participation in concessions referred to in paragraph 1^er applies only for a period of three years from the date of the event concerned.
Unless otherwise provided in the market documents, the procuring authority is not required to verify the absence of discretionary grounds for exclusion in the head of members of the administrative, managerial or supervisory body of the candidate or bidder or persons who hold a power of representation, decision or control within the applicant or bidder.
Corrective measures
Art. 53. Any candidate or bidder in any of the situations referred to in sections 50 or 52 may prove that the measures it has taken are sufficient to demonstrate its reliability despite the existence of a relevant reason for exclusion. If the adjudicator considers this evidence sufficient, the candidate or the bidder concerned is not excluded from the procurement procedure.
To this end, the candidate or bidder proves an initiative that he or she has paid or undertaken to pay compensation for any harm caused by the criminal offence or fault, fully clarified the facts and circumstances by actively working with the investigating authorities and taking concrete measures of a technical and organizational nature and in respect of personnel to prevent new criminal offences or new misconduct.
The measures taken by the candidate or bidder are assessed taking into account the seriousness of the criminal offence or fault and its particular circumstances. Where the measures are found to be insufficient, the reasoned exclusion decision must state them.
An economic operator who has been excluded by a final judgment of participation in procurement or concession proceedings is not allowed to make use of the possibility provided for in this article during the period of exclusion fixed by the said judgment in the Member States where the judgment produces its effects.
Provisions applicable to corporate groupings
and control of the grounds for exclusion
Art. 54. § 1^er. When the candidate or bidder is a group of economic operators, sections 50 to 53 apply to each member of that group.
When the candidate or bidder, or the grouping of candidate or bidder economic operators, relies on the ability of third parties to meet the selection conditions, sections 50 to 53 also apply to that or those third parties.
§ 2. The King shall specify the terms and conditions for verification of the exclusions referred to in sections 50 to 52.
Award criteria
Art. 55. § 1^er. Concessions are awarded on the basis of objective criteria that comply with the principles set out in articles 24, paragraph 1^er25, § 1^er and 38 and which guarantee the appreciation of the offers in effective competition conditions allowing the buyer to see a global economic advantage.
§ 2. These criteria are related to the subject-matter of the concession and do not confer a discretionary freedom on the buyer. They may include, among other things, environmental, social or innovation criteria.
These criteria are accompanied by requirements to effectively verify the information provided by bidders.
The adjudicator checks whether the offers meet the requirements set out in the award criteria and assesses them on the basis of the award criteria.
§ 3. The attribution criteria are mentioned in the Notice of Concession, the invitation to present an offer or concession documents, in descending order of importance.
Notwithstanding the first paragraph, when the buyer receives an offer proposing an innovative solution presenting functional performance of an exceptional level, which could not have been foreseen despite the diligence of the buyer, the buyer can, on an exceptional basis, modify the order of the award criteria in order to take into account this innovative solution. In this case, the buyer shall inform all bidders of the modification of the order of importance of these criteria and shall issue a new invitation to tender, in accordance with the minimum deadlines referred to in Article 47, paragraph 4. When the award criteria have already been taken up in the notice of concession, the buyer shall issue a new notice of concession, in accordance with the minimum time limits referred to in section 47, paragraph 3.
The modification of the order of the criteria should not result in discrimination.
Conclusion of the concession
Art. 56. The buyer determines, in the concession documents, the terms and conditions for the conclusion of the concession.
The completion of a concession procurement procedure does not imply the obligation to assign or conclude the concession. The adjudicator may either renounce the award or conclusion of the concession, or resume the procedure, if necessary in another way. If the concession is subdivided into several lots, the buyer has the right to assign only some and, eventually deciding that the other lots will be the subject of one or more new concessions, if necessary in another mode.
PART 5. - Rules relating to the performance of concession contracts
General rules of execution
Art. 57. The King sets out the general rules of enforcement of concessions, including the rules relating to subcontracting and control, for concessions to be determined by him, the absence of grounds for exclusion in the subcontractor's chief, as well as the rules relating to the modification of the concessions being executed and the provisions relating to the termination of the concession.
Concessions can only be changed in the cases defined by the King and in accordance with the conditions and conditions that He sets.
Conditions of enforcement of concession contracts
Art. 58. Adjudicators define the conditions for the execution of concessions and the operation of works and services in the concession documents.
They may provide for special conditions, especially when the concessionaire is a group of economic operators, provided that they are related to the subject-matter of the market within the meaning of Article 55, § 2, and indicated in the notice of concession or other concession documents.
These conditions may take into account considerations relating to economics, innovation, the environment, the social sphere or employment.
PART 6. - Monitoring and reporting
Art. 59. § 1^er. This title applies to concessions of an amount equal to or greater than the threshold referred to in Article 3, § 1^erParagraph 4.
§ 2. The King shall designate a point of contact for cooperation with the European Commission with regard to the application of this title and the laws and decrees relating to concessions.
§ 3. At the request of the European Commission, the contact point is responsible for establishing a report for the European Commission that includes the results of sample control operations of the application of the rules relating to the transfer of concessions relating to:
- the relevant institutional organization and control bodies;
- the prevention, detection and appropriate reporting of fraud, corruption, conflict of interest and other serious irregularities in the course of concessions;
- where applicable, the most common causes of misapplication of the rules or legal insecurity, including possible structural or recurring problems in the application of the rules;
- the level of participation of small and medium-sized enterprises, below "SME", in the procurement procedures for concessions referred to in paragraph 1^er;
- the provision of information on the application of laws, decrees and circulars relating to concessions, including SMEs, and their interpretation;
For the purposes of paragraph 1^er"PME" means companies that occupy less than 250 people and whose annual turnover does not exceed 50 million euros or whose total annual balance sheet does not exceed 43 million euros.
§ 4. The King may determine the information referred to in paragraph 3 that is taken into account and which, if any, may be requested by the point of contact referred to in paragraph 2 to the adjudicators under the federal State.
§ 5. At the request of the contact point, community and regional governments shall transmit to it, the results of the survey control operations and the information referred to in paragraph 3 that concerns them.
For this purpose, community and regional governments can request, each with respect to it, to the adjudicators who are within their jurisdiction any information or information that is relevant to this effect.
§ 6. The contact point is responsible for publishing the results of the control operations by appropriate means of information.
PART 7. - Final, transitional and abrogatory provisions
CHAPTER 1^er. - Miscellaneous provisions
Calculation of time limits
Art. 60. Unless otherwise provided, the calculation of the time limits established under this Act shall be carried out in accordance with Council Regulation 1182/71 of 3 June 1971 establishing the rules applicable to deadlines, dates and terms.
Nomenclature CPV
Art. 61. References to the nomenclatures used in the award of concessions use the CPV.
Energy efficiency
Art. 62. § 1^er. This section is only applicable to the concessions of the procuring powers, even where they are excluded from the material scope of the Act under Chapter 2 of Title 2, but only as long as it is concessions that have been made for other activities than those referred to in Schedule II.
§ 2. The State, the Regions and the Communities do not accept products, services and buildings to be fixed by the King, exclusively products, services and buildings with high energy performance. The same is true for public law bodies whose activities are mainly financed by one of the above-mentioned authorities, or their management is subject to the control of one of these authorities, or more than half of the members of the management, administrative or supervisory bodies are appointed by these authorities. With respect to public law bodies dependent on the Regions or Communities, this obligation is only applicable if it is administrative bodies whose sphere of operation corresponds to that of the Region or Community.
For the purposes of this article, the procuring powers that are subject to the obligation referred to in the first paragraph are referred to as "central authorities".
For the purposes of this article, "acquisition of a building" means the rental and acquisition of real rights on a building.
The procuring powers to which paragraph 1 does not apply^er, consider, when they acquire the products, services and buildings to be fixed by the King, the acquisition of products, services and buildings with high energy performance.
The acquisition of high-performance energy products, services and buildings is conditioned by the fact that it is compatible with cost-effectiveness, economic feasibility, broad-based sustainability, technical adequacy and an adequate level of competition.
All procuring authorities examine, when making service concessions, the possibility of entering into long-term energy performance contracts that ensure long-term energy savings.
§ 3. The King sets out the additional rules of paragraph 2. To this end, the King sets out, in particular, the minimum requirements for energy performance for the products, services and buildings it determines.
Jurisdiction
Art. 63. Within the limits of his or her powers, each Minister is competent to make decisions relating to the transfer and enforcement of the concessions of the federal authority and the organizations that fall under his or her authority.
For persons of public law other than those referred to in paragraph 1^er, powers relating to the transfer and enforcement of concessions shall be 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.
Council of Ministers
Art. 64. Royal decrees under or under this Act shall be deliberated in the Council of Ministers.
Enabling the King
Art. 65. 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 and the international acts taken under it and concerning the concessions referred to in this Act.
These measures are the subject of a report submitted to the House of Representatives.
The King may also repeal, supplement, amend or replace the provisions of this Act to ensure the transfer of non-mandatory provisions resulting from the Treaty and the international acts taken under it and concerning the concessions referred to in this Act.
The measures set out in the previous paragraph are subject to legislative confirmation within two years of their entry into force.
Compliance with organic and statutory provisions
Art. 66. 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.
CHAPTER 2. - Amendments and abrogations
Partial repeal of the Act of 15 June 2006
on public procurement and certain contracts of work, supply and services
Art. 67. In the Act of 15 June 2006 on public procurement and certain contracts of work, supply and services, are repealed:
1° Article 3, 12°;
2° Article 45, paragraph 2;
Article 60, § 2, paragraph 2;
4° sub-section V. "Concessions of public works", section III "Modes de passation" of Chapter IV "Procedures de passation" of Title 2 "Des marchés publics".
Aggregation
Art. 68. The following amendments are made to the Act of 20 March 1991 organizing the approval of construction contractors:
(a) in Article 1^er, the 2° is replaced as follows:
"2° the law public procurement: the law of the 17 juni 2016 on public procurement";
(b) in Article 1^er, is inserted a 2° bis written as follows:
"2° bis the law of defence and security: the law of 13 August 2011 on public procurement and certain contracts of work, supplies and services in the areas of defence and security";
(c) in Article 1^er, is inserted a 2° ter as follows:
"2° ter the law on concession contracts: the law of juni 2016 on concession contracts";
(d) section 2 is replaced by the following:
"Art. 2. This Act applies:
1° to public contracts of work as defined in Article 2, 18°, of the Law of 17 June 2016 on public procurement, which have passed by the procuring authorities and public enterprises as defined in Article 2, 1° and 2°, of the same Law;
2° to public contracts of work as defined in Article 3, 2°, of the Law of Defence and Security, which have passed by the procuring authorities and public enterprises as defined in Article 2, 1° and 2°, of the same Law;
3° to concessions of work as defined in Article 2, 7°, a), of the law relating to concession contracts, which are passed by the procuring powers and public enterprises as defined in Article 2, 1° and 2°, of the same law;
4° to contracts and concessions of subsidized work up to a minimum of 25 per cent, or financed directly in any other form up to a minimum of twenty five per cent, by persons of public law to which the law of public procurement, the law of defence and security and the law of concession contracts applies. ";
(e) section 3 is replaced by the following:
"Art. 3. Contracts and concessions of work referred to in Article 2, whose value exceeds an amount fixed by Royal Decree may only be executed by contractors of both private law and public law who, at the time of the conclusion of the contract or concession:
1° is approved for this purpose;
2° or have provided evidence that they meet the conditions set out in or under this Act.
Contracts and concessions of work referred to in Article 2 whose estimated value does not exceed the amount referred to in paragraph 1^er can only be executed by contractors, both private and public law persons who, at the time of the conclusion, meet the conditions laid down in Article 4, § 1^er, 1°, 4° and 7°, of this Law."
(f) in Article 4, § 1^er, 4°, a) is replaced by the following:
"(a) shall not be condemned by a judgment having force of thing tried to:
- participation in a criminal organization as defined in Article 324bis of the Criminal Code or Article 2 of Council Decision 2008/841/JAI of 24 October 2008 on combating organized crime;
- corruption, as defined in Articles 246 and 250 of the Criminal Code or Article 3 of the Convention on the Fight against Corruption involving officials of the European Communities or officials of the Member States of the European Union and Article 2, § 1^erCouncil Framework Decision 2003/568/JAI of 22 July 2003 on combating corruption in the private sector;
- fraud within the meaning of Article 1^er the Convention on the Protection of the Financial Interests of the European Communities, approved by the Act of 17 February 2002;
- terrorist offence or offence related to terrorist activities as defined in sections 137 of the Criminal Code or in section 3 of Council Framework Decision 2002/475/JAI of 13 June 2002 on combating terrorism, or incitement to commit an offence, complicity or attempted offence as referred to in Article 4 of the said Framework Decision;
- money laundering as defined in Article 3 of the Act of 11 January 1993 on the prevention of the use of the financial system for money laundering and the financing of terrorism or Article 1^er Directive 2005/60/EC of the European Parliament and the Council of 26 October 2005 on the prevention of the use of the financial system for money-laundering and the financing of terrorism;
- child labour and other forms of trafficking in human beings defined in Article 433quinquies of the Penal Code or within the meaning of Article 2 of Directive 2011/36/EU of the European Parliament and of the Council concerning the prevention of trafficking in human beings and the fight against this phenomenon and the protection of victims;
- any other offence affecting by its nature the professional morality of the entrepreneur. ";
(g) in Article 4, § 1^er, 4°, b), the words "and concessions" are inserted between the words "public markets" and "on the basis of the article";
(h) in Article 6, the words "or a concession" are inserted between the words "marked" and "work";
(i) In Article 6, the words "can not be attributed to" are replaced by the words "can not be concluded with";
(j) in Article 7, paragraph 3 is supplemented by the words "or concession";
(k) in article 11, the words "scheduled associations" are replaced by the words "switched societies" and the words "switched association" are replaced by the words "switched society";
(l) in Article 19, § 1^er, 1°, a), the words "and concessions" are inserted between the words "markets" and "passed";
(m) in Article 19, § 1^er, 1°, d) and e) are replaced by the following:
"(d) Failure to comply with the prohibition of any act, agreement or agreement that may distort the normal conditions of competition, provided for in Article 5 of the Public Procurement Act, Article 10 of the Defence and Security Act and Article 25, § 2 of the Concessions Act, including the commission of acts of corruption criminalized by Articles 246, 247, 250 and 251 of the Criminal Code;
(e) failure, during the performance of a public market, to any of the obligations referred to in Article 7, paragraph 1^erthe law of public procurement; Article 41, §§ 1^er and 3 of the Defence and Security Act and section 27, paragraph 1^erthe law on concessions;"
(n) in Article 19, § 3, the words "and concessions" are inserted between the words "public procurement contractor" and "in the cases provided";
(o) in Article 20, the words "and concessions" are inserted after the words "excluding public procurement".
Entry into force
Art. 69. With the exception of this section, which comes into force on the day of the publication of this Act to the Belgian Monitor, the King sets the date of entry into force of this Act.
Given in Brussels on 17 June 2016.
PHILIPPE
By the King:
The Prime Minister,
Ch. MICHEL
Deputy Prime Minister and Minister of Economy,
K. PEETERS
Minister of Defence,
S. VANDEPUT
Seal of the state seal:
Minister of Justice,
K. GEENS
____
Note
(1) Note
Documents of the House of Representatives:
54-1708 - 2015/2016 :
001: Bill.
002: Report.
003: Text adopted by the Commission
004: Amendments.
005: Text adopted in plenary and subject to Royal Assent.
See also:
Full report: May 26, 2016.

Annex I: List of activities covered by the definition of work concession

(1) 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). In the event of a different interpretation between the CPV and the NACE, the CPV nomenclature is applicable.

Annex II: Activities of procuring entities
(1) In the field of gas and heat:
(a) provision or operation of fixed networks to provide service to the public in the field of the production, transport or distribution of gas or heat;
(b) the supply of these gas or heat networks.
Feeding by a public company or a person with special or exclusive rights, gas or heat networks that provide service to the public is not considered to be an activity within the meaning of section 2, 4° of this Act when all of the following conditions are met:
(i) the production of gas or heat by the procuring entity is the inevitable consequence of an activity other than that referred to in this paragraph or in paragraphs 2 and 3 of this annex;
(ii) the supply of the public network is only intended to economically exploit this production and corresponds to a maximum of 20% of the turnover of that procuring entity on the basis of the average of the last three years, including the current year.
The gas supply includes generation/production as well as the wholesale and retail sale of gas. However, extraction gas production is within the scope of paragraph 4 of this annex.
(2) In the field of electricity:
(a) the provision or operation of fixed networks to provide service to the public in the field of the production, transport or distribution of electricity;
(b) the supply of these fixed power grids.
The electricity supply includes the production as well as the wholesale and retail sale of electricity.
The power supply of networks that provide service to the public by a public company or a person with special or exclusive rights is not considered to be an activity within the meaning of section 2, 4° of this Act when all of the following conditions are met:
(i) the generation of electricity by the procuring entity concerned is the result of the fact that its consumption is necessary for the exercise of an activity other than those referred to in this paragraph or in paragraphs 1 and 3 of this annex;
ii) the supply of the public network depends solely on the consumption of the procuring entity and has not exceeded 30% of the total energy production of that procuring entity based on the average of the last three years, including the current year.
(3) Activities related to the provision or operation of networks that provide public service in the area of rail transport, automatic systems, tram, trolleybus, bus or cable.
With regard to transport services, it is considered that a network exists when the service is carried out under the operating conditions established by a competent authority of a Member State, such as the conditions relating to the routes to be followed, the available transport capacity or the frequency of the service.
4) Activities related to the operation of a geographic area for the purpose of making an airport, sea or interior port or other terminals available to air, sea or river carriers.
5) Delivery activities:
(a) postal services;
(b) other services than postal services, provided that such services are carried out by an entity also performing postal services within the meaning of the second paragraph, paragraph (ii), of this paragraph and that the conditions set out in Article 34, paragraph 1, of Directive 2014/25/EU are not met with respect to services under the second paragraph, item (ii).
For the purposes of this annex:
(i) "postal consignment", a consignment sent in the final form in which it must be transported, regardless of its weight. In addition to correspondence, these shipments include, for example, books, catalogues, newspapers, periodicals and postal parcels containing goods with or without commercial value, regardless of their weight;
(ii) "post services", services that consist of the lifting, sorting, delivery and distribution of postal shipments, whether or not they fall within the scope of the universal service established in accordance with Directive 97/67/EC;
(iii) Services other than postal services, services provided in the following areas:
(1) messaging services management services (both pre-sentence and post-sentence services, including "mail processing management services");
(2) services relating to postal shipments not included in point (a) such as mailing without address.
6) Activities related to the operation of a geographic area for the purpose of:
(a) to extract oil or gas;
(b) carry out prospecting or extraction of coal or other solid fuels.

ANNEX III: List of legal acts referred to in section 2, 3) of the Act
This annex lists the procedures that ensure adequate prior transparency for the granting of authorizations on the basis of other legislative acts of the Union, which do not constitute "special or exclusive rights" within the meaning of this Act:
(a) an authorization to operate natural gas installations in accordance with the procedures defined in section 4 of Directive 2009/73/EC;
(b) the authorization to bid or the invitation to bid for the construction of new electricity production facilities in accordance with Directive 2009/72/EC;
(c) the granting, in accordance with the procedures defined in Article 9 of Directive 97/67/EC, authorizations related to a postal service that is not or should not be reserved;
(d) a procedure for granting an authorization to carry out an activity involving the exploitation of hydrocarbons in accordance with Directive 94/22/EC;
(e) public service contracts within the meaning of Regulation (EC) No. 1370/2007 for the provision of public passenger transport services by bus, tram, rail or metro assigned on the basis of a competition procedure, in accordance with Article 5, paragraph 3, of the said Regulations, provided that their duration is in accordance with Article 4, paragraph 3 or 4, of the said Regulations

ANNEX IV: list of international conventions referred to in section 27 of the Act
ILO Convention No. 87 on Freedom of Association and Protection of the Right to Organise
ILO Convention No. 98 on the Right of Organization and Collective Bargaining
ILO Convention No. 29 on Forced Labour
ILO Convention No. 105 on the Abolition of Forced Labour
ILO Convention No. 138 concerning Minimum Age for Admission to Employment
ILO Convention No. 111 concerning Discrimination (Employment and Occupation)
ILO Convention No. 100 on Equal Remuneration
ILO Convention No. 182 on the Worst Forms of Child Labour
Vienna Convention for the Protection of the Ozone Layer and its Montreal Protocol on Substances that Deplete the Ozone Layer
Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and their Disposal (Basel Convention)
Stockholm Convention on Persistent Organic Pollutants
Rotterdam Convention of 10 September 1998 on the Prior Informed Consent Procedure for Certain Hazardous Chemicals and Pesticides in International Trade (UNEP/FAO) and its three regional protocols

ANNEX V: Services under the relaxed regime of section 34 of the Act