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17 JUIN 2016. - Public Procurement 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, definitions and general principles
CHAPTER I^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;
3° Directive 2014/24/EU of the European Parliament and of the Council of 26 February 2014 on public procurement and repealing Directive 2004/18/EC, hereinafter referred to as Directive 2014/24/EU;
4° Directive 2014/25/EU of the European Parliament and of the Council of 26 February 2014 on contracting by entities operating in the sectors of water, energy, transport and postal services and repealing Directive 2004/17/EC, below referred to as Directive 2014/25/EU.
§ 2. This Act sets out the basic principles and rules applicable to public procurement under 2, Chapter 1.^erand under heading 3, chapter 1^er.
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 contract:
i were created to meet specific needs of general interest other than industrial or commercial, and
ii have a 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:
1. 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);
2. or their management is subject to control of the State, Regions, Communities, local authorities or other bodies or persons under this item (c);
3. more than half of the members of the body of administration, management or supervision 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 sections 96 to 102 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 engaged in an activity referred to in sections 96 to 102 and with special or exclusive rights. Special or exclusive rights are the rights granted by the competent authority through any legislative, regulatory or administrative provisions that have the effect of reserving an activity referred to in title 3 to one or more entities and substantially affecting the ability of other entities to exercise that 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 procedures with prior competition, in accordance with this Act, the Defence and Security Act and the Concession Act;
(b) procedures under other legal acts of the European Union, as set out in Annex IV, which ensure sufficient pre-clearance for the granting of authorizations on the basis of objective criteria;
4° procuring entity: the procuring powers referred to in 1° which carry out one of the activities referred to in articles 96 to 102, the public enterprises referred to in 2° and persons enjoying special or exclusive rights referred to in 3°;
5° adjudicator: the procuring powers carrying out activities under 2 and procuring entities;
6° purchasing center :
(a) within the meaning of title 2, a procuring authority that carries out centralized procurement activities and possibly auxiliary procurement activities as referred to respectively at 7° and 8°;
(b) within the meaning of title 3, an adjudicator who performs centralized procurement activities and possibly auxiliary procurement activities as referred to respectively at 7° and 8°;
7° centralized procurement activities: ongoing activities that take one of the following forms:
(a) the acquisition of supplies and/or services for adjudicators;
(b) the procurement of public contracts and framework agreements for work, supplies or services for adjudicators;
8° auxiliary procurement activities: activities that support procurement activities, including in the following forms:
(a) technical infrastructure to enable buyers to move from public procurement or work, supplies or services framework agreements;
(b) advice on the conduct or design of procurement procedures;
(c) the preparation and management of procurement procedures on behalf of and on behalf of the buyer;
9° provider of auxiliary purchase activities: a person of public or private law who offers auxiliary purchase activities on the market;
10° economic operator: any natural person, any legal person of public law or private law or any grouping of such persons, including temporary associations of enterprises, which offers, respectively, the realization of works, works within the meaning of 19°, supplies or services on the market. This is, as the case may be, an entrepreneur, supplier or service provider;
11° candidate: an economic operator who has asked to be invited or has been invited to participate in a restricted procedure, a competitive dialogue, an innovation partnership, a competitive procedure with negotiation, a negotiated procedure without prior publication, a negotiated procedure with or without prior competition, a list of selected candidates or a qualification system;
12° request for participation: the written and express demonstration of a candidate to be selected in the proceedings referred to in Article 2, 11°;
13° selection: the decision of an adjudicator on the selection of candidates or bidders based on the grounds for exclusion and the selection criteria;
14th bidder: an economic operator who offers an offer;
15° offers: the bidder's commitment to execute the market on the basis of market documents and the conditions it presents;
16th award: the bidder with which the contract is concluded;
17° public market: the expensive contract between one or more economic operators and one or more adjudicators, with the purpose of carrying out work, supplying products or providing services, including the contracts passed under title 3 by the public companies referred to in 2° and persons entitled to special or exclusive rights, referred to in 3°;
18° public works market: public contracts with one of the following:
(a) the execution alone or both the design and execution of work relating to one of the activities referred to in Annex I;
(b) the execution alone or both the design and execution of a work;
(c) the realization, by any means, of a work that meets the requirements set by the buyer that has a decisive influence on its nature or design;
19th book: the result of a set of building or civil engineering works intended to perform an economic or technical function by itself;
20° public procurement of supplies: the public market with the purpose of purchasing, leasing, leasing or selling, with or without purchase option, of products;
21° public service market: the public market for services other than those covered by 18°;
22° open procedure: the procurement procedure in which any interested economic operator may submit an offer in response to a market notice;
23° restricted procedure: the procurement procedure to which any interested economic operator may request to participate in response to a notice of contract and in which only candidates selected by the buyer may present an offer;
24° competitive procedure with negotiation: the procurement procedure to which any interested economic operator may request to participate in response to a market notice, in which only the selected candidates may present an offer, the market conditions that may then be negotiated with the bidders, and which applies only to the contracts within the scope of title 2;
25° pre-competition negotiated procedure: the procurement procedure to which any interested economic operator may request participation in response to a competitive appeal, in which only the selected candidates may present an offer, the market conditions that may then be negotiated with the bidders, and which applies only to the contracts within the scope of title 3;
26° negotiated procedure without prior publication: the procurement procedure in which the procuring authority requests an offer to the economic operators of its choice and can negotiate the market conditions with one or more of them, and which applies only to markets within the scope of title 2;
27° negotiated procedure without prior competition: the procurement procedure in which the procuring entity requests an offer to the economic operators of its choice and can negotiate the terms of the contract with one or more of them, and which applies only to the markets within the scope of title 3;
28° Competitive dialogue: the procurement procedure to which any interested economic operator may request to participate in response to a notice of contract and in which the buyer conducts a dialogue with the candidates selected for this procedure, with a view to developing one or more solutions suitable to meet their needs and on the basis of which or where the participants in the dialogue whose solution proposals or proposals were selected at the end of this dialogue will be invited to provide an offer;
29° direct negotiated procedure with prior publication: the procurement procedure in which any interested economic operator may submit an offer in response to a market notice and in which the buyer may negotiate the market conditions with one or more of them, and which applies only to markets within the scope of title 2;
30° direct negotiated procedure with pre-competition: the procurement procedure in which any interested economic operator may present an offer in response to a market notice and in which the buyer may negotiate the market conditions with one or more of them, and which applies only to markets within the scope of title 3;
31° competition: the procedure that allows the buyer to acquire a plan or project that is chosen by a jury after competition with or without award;
32° innovation: the implementation of a new or substantially improved product, service or process, including but not limited to production or construction processes, a new marketing method or a new organizational method in practices, the organization of the workplace or the external relations of the company, in particular with the aim of helping to meet social challenges or to support the European strategy for inclusive and inclusive growth
33° dynamic acquisition system: the fully electronic process for the acquisition of work, supplies or common-use services, the characteristics of which are generally available on the market meet the needs of the buyer, limited in time and open for its duration to any economic operator meeting the selection criteria;
34° electronic auction: the iterative process, applicable to work, supplies or services, according to an electronic device for the presentation of new prices, reduced or new values for certain elements of the offers, which comes after a first complete evaluation of the offers, allowing their classification to be carried out on the basis of automatic processing;
35° framework agreement: the agreement between one or more adjudicators and one or more economic operators whose purpose is to establish the terms governing the contracts to be made during a given period, particularly with respect to prices and, where applicable, the quantities envisaged;
36° joint market: market made jointly in its entirety or not and on behalf of several adjudicators;
37° passation: procedure for launching a public market, which, if applicable, includes the following aspects: pre-market consultation, publication, selection, award and conclusion of the market;
38° award of the contract: the decision made by the award-winning bidder;
39° market conclusion: the birth of the contractual relationship between the buyer and the buyer;
40° Common Vocabulary for Public Procurement: the reference nomenclature applicable to public procurement, 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, shortened by "CPV";
41° written or in writing: any set of words or figures that can be read, reproduced, then communicated. This set may include information transmitted and stored by electronic means;
42° electronic means: electronic processing equipment, including digital compression, and data storage, broadcast, routed and received by wire, radio, optical means or other electromagnetic means;
43rd market document: any document applicable to the contract provided by the buyer or to which it refers. Where applicable, including the notice of contract, notice of pre-information or the indicative periodic notice when used as a means of soliciting competition, the special specifications notebook or any other descriptive document including technical specifications, the proposed contractual conditions, the format of presentation of documents by candidates and bidders, information on generally applicable obligations and any other additional documents. In the event of a competition, these documents are referred to as documents of the contest;
44° technical specification :
(a) in the case of public works contracts: all technical requirements contained in, inter alia, market documents, defining the required characteristics of a material, product or supply in such a way that they meet the use to which they are intended by the buyer; these features include environmental and climatic performance levels, design for all needs, including accessibility for persons with disabilities, and assessment of compliance, employment ownership, safety or dimensions, including quality assurance procedures, terminology, symbols, testing and testing methods, packaging, marking and labelling, life instructions, and processes and methods of production They also include the rules for designing and calculating costs, the conditions for testing, checking and receiving works, as well as the methods or techniques for construction and all other technical conditions that the buyer is able to prescribe, by general or special regulations, with respect to the completed works and with respect to the materials or elements constituting these works;
(b) in public procurement of supplies or services; a specification contained in a document defining the required characteristics of a product or service, such as quality levels, environmental and climatic performance levels, design for all needs, including accessibility for persons with disabilities, and assessment of conformity, job ownership, use of the product, safety or dimensions, including the requirements applicable to the product in respect of the name under which it
45° Standard: a technical specification adopted by a standardization body recognized for repeated or continuous application, whose compliance is not mandatory and which belongs to one of the following categories:
(a) International standard: standard adopted by an international standard-setting body and made available to the public;
(b) European standard: standard adopted by a European standard-setting body which is made available to the public;
(c) National standard: standard adopted by a national standardization body and made available to the public;
46° European technical assessment: documented assessment of the performance of a construction product with respect to its essential characteristics, in accordance with the relevant European assessment document, as defined in Article 2, item 12, of Regulation No. 305/2011 of the European Parliament and of the Council of 9 March 2011 establishing harmonized conditions of marketing for construction products;
47° Common technical specification: a technical specification in the field of ICT developed in accordance with Articles 13 and 14 of Regulation No. 1025/2012 of 25 October 2012 on European Standardization;
48° technical reference: any product produced by European standards bodies, other than European standards, according to procedures adapted to changing market needs;
49° life cycle: all successive and/or interdependent steps, including the research and development to be carried out, the production, marketing and its conditions, the transport, use and maintenance, throughout the life of the product or the work or supply of a service, from the acquisition of raw materials or the production of resources to the disposal, rehabilitation or end of the service;
50° label: any document, certificate or certificate confirming that the works, products, services, processes or procedures in question meet certain requirements;
51° label requirements: the requirements of the works, products, services, processes or procedures to obtain the label concerned;
52° lot: the subdivision of a market likely to be assigned separately, in principle for a separate execution;
53° variant: an alternative design or execution mode that is introduced either at the request of the buyer or at the initiative of the bidder;
54° option: an accessory element not strictly necessary for the performance of the market, which is introduced either at the request of the buyer or at the initiative of the bidder;
55° advance: payment of a portion of the pre-service market made and accepted;
56° 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;
57° Concession law: the law of 17 June 2016 relating to concession contracts.
CHAPTER 2. - General principles
Scope of application - Principles
Art. 3. This chapter contains the general principles that apply both to public markets within the scope of title 2 and to public markets within the scope of title 3. For the purposes of this chapter, the concept of public procurement also includes framework agreements and competitions.
Principle of equality, non-discrimination, transparency and proportionality
Art. 4. Adjudicators treat economic operators on an equal footing and without discrimination 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 as well as other international conventions binding on the European Union provide for the work, supplies, services and economic operators of the signatories of these conventions a treatment that is no less favourable than that granted to the work, supplies,
Subtraction to application field and artificial limitation of competition
Art. 5. § 1^er. An adjudicator may not design a public market for the purpose of subtracting it from the scope of this Act or artificially limiting competition. Competition is considered artificially limited when a market is designed to unduly favour or disadvantage certain economic operators.
Economic operators do not make any act, enter into any agreement or agreement to distort the normal conditions of competition.
§ 2. Failure to comply with the provision referred to in paragraph 1^er, paragraph 2, shall apply the following measures, except where paragraph 1^er paragraph 1^er is also not respected, in which case paragraph 3 is applicable:
1° as long as the buyer has not made a final decision and the contract is not concluded, the deviation of requests for participation or tenders filed following such an act, agreement or agreement;
2° where the contract is already concluded, the ex officio measures fixed by the King, unless the buyer otherwise provides by reasoned decision.
§ 3. Non-compliance with the provisions referred to in paragraph 1^erParagraph 1^erand non-compliance with the provisions of the second paragraph of paragraph 1^ergives rise to the following measures:
1° as long as the buyer has not yet entered into the contract or, in the case of a subtraction to the scope of application, as long as there is no final decision, waiver of the award or conclusion of the contract, regardless of form;
2° where the contract is already concluded, regardless of the form, the ex officio measures, if any, established by the King, which may include ex officio measures with respect to the award, provided that the court did not comply with the provisions of paragraph 1^erParagraph 2.
However, a measure must not be taken in accordance with paragraph 1^er, 2°, that in the event that the adjudicator did not commit a fault, provided that the offence has released a really falsifying effect of competition.
Conflicts of interest
Art. 6. § 1^er. The adjudicator shall take the necessary measures to effectively prevent, detect and correct conflicts of interest arising in the procurement and execution of the market in order to avoid any distortion of competition and to ensure equal treatment of all economic operators.
The concept of a conflict of interest is at least any situation in which, in the course of the procurement or execution of any employee concerned, any public officer or other person related to an adjudicator in any way, including the supplier of auxiliary procurement activities acting on behalf of the adjudicator, as well as any person likely to influence the financial or other outcome of the contract, directly or economically
The King may also designate other situations as conflicts of interest.
§ 2. Any public servant, public officer or other person related to an adjudicator in any way, including the supplier of auxiliary procurement activities acting on behalf of the adjudicator, shall intervene in any way, directly or indirectly, in the procurement or execution of a public procurement contract, as soon as it may be, either personally or by person involved, 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 itself 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 of the share.
Respect for environmental, social and labour law
Art. 7. Economic operators are required to respect and enforce by any person acting as a subcontractor at any stage and by any person making available personnel for the performance of the market, 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 by the international provisions on environmental, social and labour law set out in Annex II.
Without prejudice to the application of the sanctions referred to in other legal, regulatory or treaty provisions, breaches of obligations referred to in paragraph 1^er are recognized by the buyer and, if necessary, give rise to the application of the measures provided for in the event of a breach of the market clauses.
Economic operators
Art. 8. § 1^er. Economic operators who, under the legislation of the Member State in which they are established, are entitled to provide the benefit 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.
§ 2. Groups of economic operators can participate in public markets. They are not compelled by adjudicators to have a specific legal form to apply for participation or offer.
Adjudicators may specify, in market documents, how economic operator groupings must meet, with respect to conventional sectors, the requirements relating to economic and financial capacity or the technical and professional capacities referred to in section 71, paragraph 1^er, 2° and 3°, or, in respect of special sectors, the qualification and qualitative selection criteria and rules referred to in Part 3, Chapter 4, Section 3, Sub-Section 2, provided that this is justified by objective reasons and proportionate. The King may determine the conditions for the application of these requirements.
All market conditions imposed on such groups of economic operators, which differ from those imposed on individual participants, must also be justified by objective reasons and proportionate.
Notwithstanding paragraph 1^er, adjudicators may require that groupings of economic operators adopt a specified legal form when the market has been assigned to them, provided that this is necessary for the proper execution of the public market.
Formal principle
Art. 9. The public procurements have gone through, without being able to be made in the course of their execution of the amendments considered substantial, except for the exceptions set by the King and in accordance with the conditions laid down by him.
However, public markets can be passed without a fixed price fixing, in the following cases:
1° in exceptional cases, for complex works, supplies or services or a new technique, presenting important technical hazards, which oblige to start the performance of the services while all conditions of fulfillment and obligations cannot be determined completely;
2° in the case of extraordinary and unpredictable circumstances that a diligent adjudicator could not provide, in the case of urgent work, supplies or services whose execution conditions are difficult to define.
Revision of prices
Art. 10. The flat-rate nature of the public procurement referred to in Article 9 is not an obstacle to the revision of prices on the basis of specific economic or social factors, provided that a clear, precise and univocal price revision clause is provided in the market documents.
The price review must meet the evolution of prices of the main components of the return price. The King sets out the complementary material and procedural terms of this price review and may make it mandatory to insert such a clause for markets that reach certain amounts or time limits that it sets out.
If the economic operator has recourse to subcontractors, they must, if applicable, be applied the revision of their prices according to the terms to be fixed by the King and to the extent corresponding 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 public procurement.
Broadening of contract balance
Art. 11. For the markets it determines, the King defines a review mechanism for cases of contract balance change, in the event that this revision results from unpredictable circumstances. The flat-rate nature of the public procurement referred to in Article 9 is not an obstacle to the application of this review mechanism.
The King sets the conditions and procedure for the application of the review mechanism.
Payment for service done and accepted
Art. 12. A payment can only be made for a service done and accepted. In this capacity, in accordance with the provisions of the market documents, procurements constituted for the performance of the contract and approved by the buyer.
However, advances may be granted but only under the material conditions and, where appropriate, procedural conditions established by the King.
Confidentiality
Art. 13. § 1^er. As long as the buyer has not made a decision, as the case may be, regarding the selection or qualification of candidates or participants, the regularity of bids, the award of the contract or the renunciation of the procurement, candidates, participants, bidders and third parties have no access to the documents relating to the procurement procedure, including applications for participation or qualification, to the applications for participation or qualification,
It may be derogated from paragraph 1 through the written agreement of the candidate or bidder participating in the negotiations, in accordance with articles 38, § 6, paragraph 2, 39, § 3, paragraph 3, paragraph 3, paragraph 4, paragraph 2, and § 5, paragraph 4, 41, § 4, paragraph 2, 121, § 3, paragraph 3, and 122, § 4, paragraph 2, only for the confidential information provided by that candidate or bidder.
§ 2. Without prejudice to advertising obligations in respect of the public procurement awarded and the information of candidates, participants and bidders, the adjudicator does not disclose information that the economic operator has provided to it in confidence, including any technical or commercial secrets and 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.
§ 3. The adjudicator may impose on the economic operator the requirements to protect the confidentiality of the information it provides.
Rules applicable to means of communication
Art. 14. § 1^er. Communications and exchange of information between the buyer and the economic operators, including electronic transmission and receipt of tenders, referred to in paragraph 7, shall, at all stages of the procurement procedure, be carried out by electronic means of communication, except in the cases referred to in paragraphs 2 to 4.
Without prejudice to paragraph 5, the tools and devices used to communicate by electronic means, as well as their technical characteristics, are not discriminatory, are commonly available and compatible with the generally used ICTs, and do not restrict the access of economic operators to the procurement procedure.
§ 2. Notwithstanding paragraph 1^erParagraph 1^er, the buyer is not required to prescribe the use of electronic means of communication:
1° where, due to the specialized nature of the market, the use of electronic means of communication would require specific tools, devices or file formats that are not commonly available or supported by commonly available applications;
2° where applications supporting file formats adapted to the description of offers use file formats that cannot be processed by any other open or commonly available application or are subject to a proprietary license regime and cannot be made available by download or remotely by the buyer;
3° where the use of electronic means of communication would require specialized office equipment that is not commonly available to adjudicators;
4° where market documents require the presentation of models or models that cannot be transmitted electronically;
5° when it comes to a public market passed in accordance with the negotiated procedure without publication or preliminary competition whose estimated amount is less than the threshold for European advertising.
An adjudicator who, for a reason referred to in paragraph 1^er, 1° to 4°, prescribes or authorizes the use of other means of communication than electronic means, indicates the reasons in the information referred to in Article 164, §§ 1^er and 2.
Communications for which electronic means are not used under this paragraph shall be forwarded by mail or by any other appropriate porting service or by combining the postal or other appropriate porting service on the one hand and electronic means of communication on the other.
§ 3. Notwithstanding paragraph 1^erParagraph 1^er, the adjudicator is not required to prescribe the use of electronic means, to the extent that the use of other means of communication that electronic means is necessary because of a violation of the security of electronic means of communication, or of the particularly sensitive nature of the information that requires an extremely high degree of protection that cannot be adequately ensured by the use of electronic tools and devices commonly available to the operators
An adjudicator who, for a reason referred to in paragraph 1^er, prescribes or accepts the use of other means of communication that electronic means indicates the reasons in the information referred to in Article 164, §§ 1^er and 2.
§ 4. Notwithstanding paragraph 1^erParagraph 1^er, oral communication is permitted for the transmission of other communications than those relating to the essential elements of the procurement procedure, provided that sufficient evidence of the content of the oral communication is kept. These include:
1° market documents;
2° requests for participation;
3° offers.
With respect to oral communication with bidders, likely to have a significant impact on the content and evaluation of bids, the requirement to keep sufficient evidence as referred to in paragraph 1^er is done using written notes or audio recordings, a summary of the main elements of the communication or other appropriate means.
Paragraph 1^er in no way prevents information sessions from being organized, during which the disclosure of information relating to market documents takes place orally, provided that sufficient evidence of the content of this oral communication is kept in accordance with paragraph 2 and that no information that is not already available in market documents is provided. This documentation is distributed to all interested parties.
§ 5. Notwithstanding paragraph 1^er, paragraph 2, the buyer may, if necessary, prescribe the use of tools and devices that are not commonly available, provided that other appropriate means of access are available. The King determines the cases in which the buyer is deemed to have offered other appropriate means of access.
§ 6. The adjudicator shall ensure that the data integrity and confidentiality of offers and requests for participation are maintained in any communication and exchange and storage of information. It is not aware of the content of the offers and requests for participation until the expiry of the final deadline for the submission of these offers.
§ 7. Electronic tendering tools and devices, requests for participation, as well as plans and projects under the competitions, below referred to as "electronic platforms", must at least ensure, by appropriate technical means and procedures, that:
1° the exact time and date of receipt of tenders, requests for participation and submission of plans and projects can be accurately determined;
2° it may reasonably be assured that no person may have access to the data transmitted under these requirements before the specified deadlines;
3° only authorized persons may fix or modify the dates of the opening of the data received;
4° at the different stages of the procurement, execution or examination procedure, only authorized persons shall be able to have access to all or part of the data submitted;
5° only authorized persons give access to the data transmitted and only after the specified date;
6° the data received and opened pursuant to these requirements shall be accessible only to persons authorized to become aware of it;
7° in the event of a violation or attempted violation of the prohibitions or conditions of access referred to in points 2°, 3°, 4°, 5° or 6°, it may be reasonably guaranteed that violations or attempts to infringe are clearly detectable.
Interested parties must also be able to have information on the specifications related to the submission of bids and requests for electronic participation, including encryption and timekeeping.
This paragraph is not applicable in the cases referred to in paragraphs 2 and 3.
The King sets out the additional material and procedural arrangements for electronic platforms, including the security levels required for the use of electronic means of communication for each phase of the procurement procedure. This level must be proportional to the risks.
Reserved markets
Art. 15. An adjudicator may, in accordance with the principles of the Treaty on the Functioning of the European Union, reserve access to the procurement procedure for protected workshops and economic operators whose purpose is the social and professional integration of persons with disabilities or disadvantaged, or reserve the execution of these contracts in the context of protected employment programmes, provided that at least thirty per cent of the staff of these workshops, economic operators or
The notice of contract or, in its absence, another market document refers to the reservation referred to in paragraph 1^er by referring to this article.
The adjudicator may refer to a workshop, operator or program in accordance with the terminology used and the conditions set out in an order or order.
However, the buyer must accept workshops, operators and programs that meet equivalent conditions.
Estimated market value
Art. 16. The amount of the market must be estimated. The King sets the rules for estimating the amount of the market.
Unless otherwise provided, all amounts of this Act shall not be taxed on value added.
PART 2. - Public markets in the conventional sectors
CHAPTER I^er. - Scope of application
Section 1^re - Application field ratione personae
Application field ratione personae - generalities
Art. 17. The procuring powers referred to in Article 2, 1° shall be subject to the application of this title.
A non-limitative list of persons referred to in Article 2, 1°, c), is established by the King.
Subsidiary markets
Art. 18. A person who does not meet the requirements of section 2, 1°, is subject to the provisions of heading 1^er and title 2, chapters 1^er to 5, for public markets that it passes when the following cumulative conditions are met:
1° the estimated amount of the market is equal to or greater than the corresponding threshold for European advertising;
2° the market is subsidized directly to more than fifty percent by a procuring power within the meaning of Article 2, 1°;
3° The purpose of the market is:
(a) civil engineering work referred to in Schedule I or construction work related to hospitals, sports, recreational, leisure, school, academic or administrative buildings;
(b) services that are related to the work or work referred to in (a).
The awarding authority shall ensure compliance with the provisions of this Act when it fails to award the subsidized contracts or assigns them to the name and account of other entities.
This provision shall apply without prejudice to any other provision or decision imposing compliance with the provisions of this Act.
Section 2. - Scope of application ratione materiae
Sub-section 1^re. - General provision
Scope of application ratione materiae - General
Art. 19. This title applies to public contracts defined in Article 2, 17° to 21° and to competitions defined in Article 2, 31° and framework agreements defined in Article 2, 35°. Unless otherwise provided, the provisions of this title shall apply to markets below, equal to or above the thresholds set for European advertising.
The King is responsible for adjusting certain amounts according to the revisions provided in the European directives determining the value of the thresholds indicated in his directives.
For the purposes of this chapter, the concept of public procurement also includes framework agreements and competitions.
Sub-section 2. - Mixed markets
Mixed markets with different types of markets under this heading
Art. 20. Contracts that have a number of types of markets that fall under all of this title are entered into in accordance with the provisions applicable to the type of market that is the principal object of the market in question.
With respect to mixed markets that cover both services and supplies or mixed markets that cover both social services and other specific services within the meaning of Chapter 6, and other services, the main object is determined based on the highest value of the respective estimated values of supplies or services.
A public market for the provision of products or the provision of services and, incidentally, installation and installation work is considered to be a public procurement of supplies or services.
Mixed markets for markets under this heading and markets under other legal regimes
Art. 21. § 1^er. This section applies to mixed markets that are both subject to markets under this heading and to markets under other legal regimes.
§ 2. When the different parts of a given market are objectively inseparable, the applicable legal regime is determined on the basis of the principal object of that market.
§ 3. When the different parts of a given market are objectively separable, the procuring power may decide to make separate markets for the different parts of the market or, on the other hand, to make a single market.
When the procuring authority decides to make separate contracts for the various parties, the decision on the legal regime applicable to each of these separate markets is adopted on the basis of the characteristics of the various parties in question.
Where the procuring authority decides to enter a single market, this title applies, unless otherwise provided in section 24, to the resulting mixed market, regardless of the value of the parties normally subject to a different legal regime and regardless of the legal regime that would normally have been recognized.
In the case of a mixed market containing elements of work contracts, supplies or services under this title and elements of concessions, the mixed market has passed in accordance with this title.
Mixed markets related to contracts to which this title is applied, as well as contracts falling under title 3
Art. 22. Where a market has both contracts under this title and contracts for the exercise of an activity under Title 3, the applicable rules are, notwithstanding Article 21, § 2, determined in accordance with Articles 103 to 105.
Mixed markets related to defence and security aspects - reference to Article 24
Art. 23. Where a portion of a particular market falls under headings 2 or 3 or title 3/1 of the Defence and Security Act, section 24 applies.
Mixed markets with defence or security aspects
Art. 24. § 1^er. This section applies to joint markets that are both subject to markets under this heading or to markets under Article 346 of the Treaty relating to the Functioning of the European Union, or to markets under headings 2 or 3 or 3 or title 3/1 of the Defence and Security Act.
§ 2. Where the different parts of a given market are objectively inseparable, the market may be passed in accordance with Title 3/1 of the Defence and Security Act where it contains elements relevant to the application of Article 346 of the Treaty on the Functioning of the European Union or when it relates to the essential security interests of the Kingdom.
Where in the same case, the market does not include any element relevant to the application of Article 346 of the Treaty on the Functioning of the European Union or where it does not relate to the essential security interests of the Kingdom, it may be passed in accordance with Parts 2 and 3 of the Defence and Security Act.
§ 3. When the different parts of a given market are objectively separable, the procuring power may decide to make separate markets for the different parts of the market or to enter a single market.
When the procuring authority decides to make separate contracts for the various parties, the decision on the legal regime applicable to each of these separate markets is adopted on the basis of the characteristics of the various parties in question.
When the procuring authority chooses to enter a single market, the following criteria apply to determine the applicable legal regime:
1° where a part of a given market falls under Title 3/1 of the Defence and Security Act, the market may be passed in accordance with the above title, provided that the procurement of a single market is justified by objective reasons;
2° where a portion of a given market falls within 2 or 3 of the Defence and Security Act, the market may be passed in accordance with the above-mentioned securities, provided that the procurement of a single market is justified by objective reasons. This provision is without prejudice to the thresholds and exclusions provided for in the Act.
However, the decision to enter a single market cannot be taken to exclude markets from the application of this Act or securities 2 or 3 of the Defence and Security Act.
When, for the purposes of the third paragraph, both the conditions of 1° and 2° are met, the 1° applies.
Subsection 3. - Exclusions
Markets in water, energy, transport and postal services
Art. 25. This title does not apply to public contracts that, as part of title 3, have passed by a procuring authority exercising one or more of the activities referred to in sections 96 to 102 of that title and that have passed for the exercise of these activities, or to public contracts excluded from the scope of the said title under sections 109, 111 and 116, or, where they are passed by an adjudicating authority that provides services
1° value-added services related to e-mail and carried out entirely electronically, including the secure transmission of electronically coded documents, address management services and the recommended e-mail transmission;
2° financial services under CPV codes under reference numbers 66,100000-1 to 66,720,000-3 and 28 § 1^erParagraph 1^er5°, including postal transfers and transfers from current postal accounts;
3° services of philatelia; or
4° logistics services, particularly services involving physical remission and/or deposit to non-postal functions.
Specific exemptions in the field of electronic communications
Art. 26. Not subject to the application of this title, public contracts that are primarily intended to allow the procuring authority to make public communications networks available or operated or to provide to the public one or more electronic communications services.
Public procurement under international rules
Art. 27. Not subject to the application of this Act, without prejudice to section 34:
1° the public procurements that the procuring authority must pass in accordance with procurement procedures that differ from those set out in this Act and are determined 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 procuring authorities shall communicate any legal instrument referred to at the point of contact referred to in Article 162, § 2;
(b) an international organization;
2° the public markets that the procuring authority passes in accordance with market rules provided by an international organization or an international financial institution, where the relevant public markets are fully financed by the said organization or institution.
With respect to co-funded public procurements for more than half by an international organization or an international financial institution, the parties agree to the applicable procurement procedures.
Specific exemptions for service markets
Art. 28. § 1^er. Not subject to the application of this Act, subject to subsection 2, the public service markets for which:
1 the acquisition or lease, regardless of financial terms, land, existing buildings or other immovable property or in respect of rights to such property;
2° the purchase, development, production or co-production of program material for audio-visual or radio media services that have been passed by audio-visual or radio-telephone service providers, or to markets for broadcast times or the provision of programs that are attributed to audio-visual 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 of arbitration or conciliation in a Member State, a third country or an international arbitration or conciliation proceeding, or
ii of proceedings before the courts or public authorities of a Member State or a third country or before international courts or institutions;
(b) the legal counsel provided for the preparation of any procedure referred to in paragraph (a), or where there are tangible signs and high probabilities that the issue on which the counsel is brought shall be the subject of such a procedure, provided that the counsel emanates from a lawyer within the meaning of section 1^er of Directive 77/249/EEC referred to above;
(c) the certification and authentication services to be performed by notaries;
(d) legal services provided by legal administrators or 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° 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 of the Council and Directive 2000/12/EC of the European Parliament and the Council and repealing the directive 93/22/EEC of the Council, as well as
6° loans, whether or not related to the issuance, sale, purchase or transfer of securities or other financial instruments;
7° employment contracts;
8° Civil defence, civil protection and risk prevention services that are provided by non-profit organizations or associations that fall under CPV codes 75250000-3, 75251000-0, 75251100-1, 75251110-4, 75251120-7, 75252000-7, 75222000-8, 98113100-9 and 85143000-3 except ambulance services for the transport of patients;
9° public passenger transport services by rail or metro when they fall within the scope of Regulation 1370/2007 of the European Parliament and of the Council of 23 October 2007 relating to public passenger transport services by rail and by road, and repealing Council Regulation No. 1191/69 and No. 1107/70;
10° the services related to political campaigns, falling under CPV codes 79341400-0, 92111230-3 and 92111240-6, when they passed by a political party in the context of an election campaign.
Paragraph 1^er 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 communications 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 of 27 March 2009 concerning broadcasting and^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 1.5 of the Act of 30 March 1995 referred to above, Article 2, 31°, of the decree of the Flemish Community of 27 March 2009 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".
The King can define the cases considered "work contract."
§ 2. The King may set the procurement rules to which the contracts referred to in paragraph 1 are subject.^er, 4° a and b, in the cases it determines.
Services markets past on the basis of an exclusive right
Art. 29. Not subject to the application of this Act, public procurement of services between a procuring authority and another procuring authority or an association of procuring powers on the basis of an exclusive right to which they are entitled under published legislative, regulatory or administrative provisions, provided that these provisions are consistent with the Treaty on the Functioning of the European Union.
Control "in house"
Art. 30. § 1^er. A public market 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 80% per cent 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 private capital participation, except for forms of private capital participation without the control or blocking capacity required by national legislation, in accordance with 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, as defined in paragraph 1^er, 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 market with the procuring power that controls it, or another legal person controlled by the same procuring authority, provided that the legal person with whom the public market has passed does not have direct private capital participation, except for forms of private capital participation without the capacity of control or blocking required by the national legislation, in accordance with 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 public market with that legal entity 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 80% of the activities of this legal entity are carried out as part of the execution of the tasks entrusted to it by the procuring powers that control it or by other legal persons controlled by the 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 control or blocking capacity required by national legislation, in accordance with 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 each of the following conditions is 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^erParagraph 1^er, 2° and 3, paragraph 1^er, 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 during the three years preceding the procurement of the market.
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.
Non-institutionalized horizontal cooperation
Art. 31. A contract concluded exclusively between two or more procuring authorities does not fall within the scope of this Act, where each of the following conditions is met:
1° the market establishes or implements cooperation between the participating procuring authorities in order to ensure that the public services to which they are responsible for the delivery 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% of the activities involved in cooperation in the competitive market. This percentage of activities is determined in accordance with Article 30, § 4.
Research and development services
Art. 32. Not subject to the application of this Act, research and development services markets. The Act is, however, applicable to research and development services markets under CPV codes 73000000-2 to 73120000-9, 73300000-5, 73420000-2 and 73430000-5, provided that the following two conditions are met:
1° their fruit belongs exclusively to the procuring power for its use in the exercise of its own activity; and
2° service delivery is fully paid by the procuring power.
Defence and Security
Art. 33. § 1^er. This Act applies to public procurement in the areas of defence and security, except:
1° contracts under the Defence and Security Act;
2° the contracts referred to in Article 18 of the Defence and Security Act.
§ 2. This Act does not apply to public contracts that are not otherwise excluded under subsection 1^er insofar as the protection of the essential interests of the security of the Kingdom cannot be guaranteed by less intrusive measures, for example by imposing conditions to protect the confidentiality of the information that the procuring power makes available in the context of a procurement procedure provided for in this Act.
In addition, and in accordance with section 346, paragraph 1^er, (a), of the Treaty on the Functioning of the European Union, this Act does not apply to public contracts that are not otherwise excluded under subsection 1^er in this section, to the extent that the application of this Act would require the Kingdom to provide information that it considers disclosure to be contrary to the essential interests of its security.
§ 3. Where the procurement and enforcement of the public market is declared secret or must be accompanied by specific security measures, in accordance with the legislative, regulatory or administrative provisions in force in the Kingdom, this Act does not apply, provided that it is established that the protection of the essential interests concerned cannot be guaranteed by less intrusive measures, such as those referred to in paragraph 2, paragraph 1^er.
Public procurement with respect to defence and security aspects that have been passed in accordance with international rules
Art. 34. § 1^er. This Act does not apply to public procurement with aspects relating to the defence or security that the procuring authority has an obligation to pass in accordance with procurement procedures that differ from those under this Act, and which are determined by one of the following:
1° an international agreement or arrangement concluded, in accordance with the treaties, between the Kingdom and one or more third countries or subdivisions thereof, covering work, supplies or services intended for the realization or joint operation of a project by their signatories;
2° an international agreement or arrangement concerning the parking of troops and concerning enterprises of a member State or a third country;
3° an international organization.
All agreements or arrangements referred to in paragraph 1^er, 1°, are reported to the point of contact mentioned in Article 163, § 2.
§ 2. This Act does not apply to public procurement involving aspects relating to the defence or security that the procuring authority passes in accordance with market rules provided by an international organization or an international financial institution, where the public markets concerned are fully funded by that organization or institution. In the case of public procurement, which is largely co-financed by an international organization or an international financial institution, the parties agree on applicable procurement rules.
CHAPTER 2. - Passing procedures
Selection of the procedure
Art. 35. Without prejudice to Article 38, § 1^er, 2°, and of section 42, the procurement of public procurement is done according to one of the following procedures, provided that a market notice has been published:
1° the open procedure;
2° the restricted procedure;
3° the competitive procedure with negotiation, under the conditions set out in Article 38;
4° the competitive dialogue, according to the conditions laid down in Article 39;
5° the partnership of innovation, according to the conditions set out in Article 40;
6° the procedure negotiated directly with prior publication, according to the conditions laid down in Article 41.
In cases and circumstances expressly referred to in Article 42, contracts may be negotiated by negotiated procedure without prior publication.
Open procedure
Art. 36. § 1^er. In an open procedure, any interested economic operator may submit an offer in response to a market notice.
The minimum deadline for receipt of bids is thirty-five days from the date of the notification of contract.
The offer includes information for the selection requested by the procuring authority.
§ 2. In the event that the procuring authority has issued a notice of pre-information the minimum deadline for receipt of the offers referred to in paragraph 1^er, paragraph 2, may be reduced to fifteen days, provided that all the following conditions are met:
1° the notice of pre-information contained all the information set by the King, to the extent that they were available at the time of publication of the notice of pre-information;
2° the notice of pre-information was sent for publication at least thirty-five days to twelve months before the date of the notice of contract.
§ 3. Where an emergency situation, duly justified by the procuring authority, renders the minimum period provided for in paragraph 1^er, paragraph 2, impossible to comply, it may set a time limit that cannot be less than fifteen days from the date the notice of contract is sent.
§ 4. The procuring authority may reduce by five days the deadline for receipt of tenders provided for in paragraph 1^er, paragraph 2, if the offers are submitted electronically in accordance with the rules relating to electronic platforms taken by and under Article 14, § 1^erparagraphs 2 and §§ 5 to 7.
§ 5. The King may determine the additional procedural procedures applicable to the open proceedings.
Restricted procedure
Art. 37. § 1^er. In a limited procedure, any economic operator may submit an application for participation in a market notice containing the information set by the King by providing the information for the purpose of the selection requested by the procuring authority.
The minimum deadline for receipt of applications for participation is 30 days from the date the notice of contract is sent.
§ 2. Only economic operators invited to do so by the procuring authority following the evaluation by the procuring authority of the information provided may submit an offer. The procuring authority may limit the number of candidates to be invited to participate in the proceedings in accordance with Article 79.
The minimum deadline for receipt of bids is 30 days from the date of sending the invitation to bid.
§ 3. In the event that the procuring authority has issued a notice of pre-information the minimum deadline for receipt of the offers referred to in paragraph 2, paragraph 2, may be reduced to ten days, provided that all the following conditions are met:
1° the notice of pre-information contained all the information set by the King, to the extent that they were available at the time of publication of the notice of pre-information;
2° the notice of pre-information was sent for publication from thirty-five days to twelve months before the date of the notice of contract.
§ 4. Where an emergency situation, duly justified by the procuring authority, renders the minimum deadlines provided for in this article impossible to comply, these may set:
1° for the receipt of requests for participation, a period not less than fifteen days from the date of the notification of contract;
2° for the reception of the offers, a time limit that cannot be less than ten days from the date of sending the invitation to bid.
§ 5. The procuring authority may reduce by five days the deadline for receipt of tenders under paragraph 2, paragraph 2, if the bids are submitted electronically in accordance with the rules on electronic platforms taken by and under article 14, § 1^erParagraph 2 and paragraphs 5 to 7.
§ 6. The King may set out the procedural procedures additional to the restricted procedure.
Competitive procedure with negotiation
Art. 38. § 1^er. The procuring authority may apply a competitive procedure with negotiation in the following cases:
1° for work, supplies or services meeting one or more of the following criteria:
(a) the requirements of the procuring power cannot be met without adapting immediately available solutions;
(b) include innovative design or solutions;
(c) the contract may not be awarded without prior negotiations due to specific circumstances related to its nature, complexity or legal and financial assembly or due to the risks associated with it;
(d) the procuring power is not able to define the technical specifications with sufficient accuracy by referring to a European standard, technical assessment, common technical specification or technical reference within the meaning of Article 2, 45° to 48°;
(e) market access is reserved pursuant to Article 15 and the estimated value-added non-tax market is below the threshold for European advertising;
(f) the estimated value-added non-tax market is less than the amount determined by the King;
2° for work, supplies or services for which, in response to an open or restricted procedure, only irregular or unacceptable offers were submitted.
In the case referred to in paragraph 1 ^er, 2°, the procuring authority is not required to publish a contract notice if it includes in the proceedings all bidders, and only bidders, who meet the criteria set out in sections 67 to 78 and who, in the earlier open or restricted proceedings, submitted bids in accordance with the formal requirements of the procurement procedure. If it does not include all bidders in the proceedings, the procuring authority will, however, be required to publish a market notice.
However, where the first procedure was not necessarily subject to European advertising, the procuring authority may, in order to expand competition, consult also the economic operators who, in his view, may meet the selection requirements, whether or not they have issued a regular offer or have not submitted an offer in the first proceedings. In such cases, the procuring authority is not required to publish a market notice.
§ 2. In a competitive procedure with negotiation and without prejudice to paragraph 1^er, paragraphs 2 and 3, any economic operator may submit an application for participation in response to a market notice, providing information for the purpose of the selection that is claimed by the procuring authority.
§ 3. In market documents, the procuring authority defines the subject matter of the market by providing a description of its needs and the required characteristics of supplies, works or services subject to the market and specifies the criteria for contract award. It also indicates the elements of the description that set the minimum requirements for all offers.
The information provided is sufficiently accurate to allow economic operators to determine the nature and scope of the market and to decide whether or not to participate in the procedure.
The minimum deadline for receipt of applications for participation is 30 days from the date the notice of contract is sent. The minimum deadline for receipt of initial offers is 30 days from the date of receipt of the invitation. Article 37, §§ 3 to 5, is applicable.
§ 4. Only economic operators who have received an invitation from the procuring authority following the evaluation by the procuring authority of the information provided may submit an initial offer, which serves as the basis for subsequent negotiations. The procuring authority may limit the number of candidates to be invited to participate in the proceedings in accordance with Article 79.
§ 5. The procuring authority negotiates with bidders the initial bids and all subsequent bids they have submitted, with the exception of the final bids within the meaning of paragraph 8, with a view to improving their content. However, the procuring authority may award contracts on the basis of initial offers without negotiation, when it indicated, in the notice of contract, that it reserves the opportunity to do so.
Minimum requirements and allocation criteria are not negotiated.
§ 6. During the negotiation, the procuring authority ensures equal treatment of all bidders. To this end, it does not provide discriminatory information that may benefit certain bidders from others. It shall inform in writing all bidders whose offers have not been eliminated under paragraph 7 of all changes, other than those that define minimum requirements, made to technical specifications or other market documents. As a result of these changes, the procuring authority provides sufficient time to allow bidders to change their bids and resubmit them if necessary.
In accordance with Article 13, the procuring authority shall not disclose to other participants the confidential information provided by a candidate or bidder participating in the negotiations, without the written and prior agreement of the latter. This agreement does not take the form of a general renunciation but aims at specific information that is envisaged for communication.
§ 7. The competitive process with negotiation may take place in successive phases to limit the number of bids to be negotiated by applying the allocation criteria specified in the notice of contract or in another market document. The procuring authority indicates, in the notice of contract or in another market document, whether it will make use of this option.
§ 8. When the procuring authority intends to conclude the negotiations, it shall inform the bidders remaining in the bid and shall set a common deadline for the submission of any new or revised bids. It verifies that the final offers meet the minimum requirements and comply with Article 66, § 1^er, it assesses the final offers on the basis of the award criteria and assigns the market under sections 79 to 84.
When the procuring authority has reserved the right not to conduct negotiations in the notice of contract and it makes use of it, the initial offer is therefore final offer.
§ 9. The King may determine the additional procedural procedures applicable to the competitive procedure with negotiation.
Competitive dialogue
Art. 39. § 1^er. The procuring power may apply a competitive dialogue in the same situations as in Article 38, § 1^er, 1°, (a) to (d), and 2°.
Any economic operator may submit a request for participation in a competitive dialogue in response to a market notice by providing information for the purpose of the selection that is claimed by the procuring authority.
The minimum deadline for receipt of applications for participation is 30 days from the date the notice of contract is sent.
Only economic operators who have received an invitation from the procuring authority following the evaluation of the information provided can participate in the dialogue. The procuring authority may limit the number of candidates admitted to participate in the proceedings in accordance with Article 79. The market is awarded on the sole basis of the best value/price criterion, in accordance with Article 81, § 2, 3°.
§ 2. The procuring authority identifies its needs and requirements in the notice of contract and defines them in that notice and/or in a descriptive document. On this occasion, and in the same documents, it also identifies and defines the attribution criteria selected and sets an indicative schedule.
§ 3. The procuring authority, with the participants selected in accordance with the relevant provisions of sections 66 to 80, opens a dialogue whose purpose is to identify and define the means to best meet its needs. During this dialogue, it can discuss all aspects of the market with the selected participants.
During the dialogue, the procuring authority ensures equal treatment for all participants. To this end, it does not discriminately provide information that may benefit some participants from others.
In accordance with Article 13, the procuring authority does not disclose to other participants the proposed solutions or confidential information provided by one of the participants without the written and prior consent of the participant. This agreement does not take the form of a general renunciation but aims at specific information that is envisaged for communication.
§ 4. Competitive dialogue can take place in successive phases so as to limit the number of solutions to be discussed during the dialogue phase by applying the award criteria set out in the notice of contract or in the document. In the market notice or descriptive document, the procuring authority indicates whether it will make use of this option.
§ 5. The procuring power continues the dialogue until it is able to identify the solution(s) that are likely to meet its needs.
§ 6. After the closing of the dialogue and having informed the participants remaining in the contest, the procuring authority invites each of them to submit its final offer on the basis of the solutions(s) presented and specified during the dialogue. These offers include all necessary and necessary elements for the project.
At the request of the procuring authority, these offers may be clarified, clarified and optimized provided that they do not have the effect of modifying the essential aspects of public offer or market, including the needs and requirements set out in the notice of contract or in the descriptive document, where changes to these aspects, needs or requirements are likely to distort competition or have a discriminatory effect.
§ 7. The procuring authority assesses the bids received according to the award criteria set out in the notice of contract or in the descriptive document.
At the request of the procuring authority, negotiations may be carried out with the qualified bidder as having delivered the offer presenting the best value/price in accordance with Article 81, § 2, 3°, to confirm the financial commitments or other conditions set out in the offer by stopping the terms of the market, provided that this process does not result in an important modification of the essential aspects of the public offer or market, including
§ 8. The procuring authority may provide for bonuses or payments to participants in the dialogue.
§ 9. The King may establish additional procedural arrangements for competitive dialogue.
Innovation Partnership
Art. 40. § 1^er. In an innovation partnership, any economic operator may submit an application for participation in a market notice by providing information for the purpose of the selection that is claimed by the procuring authority.
In market documents, the procuring authority defines the need for an innovative product, service or work that cannot be met by the acquisition of products, services or works already available on the market. It sets out the elements of this definition that set out the minimum requirements to be met by all offers. The information provided is sufficiently accurate to allow economic operators to determine the nature and scope of the required solution and to decide whether or not to participate in the procedure.
The procuring authority may decide to establish the innovation partnership with one or more partners conducting separate research and development activities.
The minimum deadline for receipt of applications for participation is 30 days from the date the notice of contract is sent. Only economic operators who have received an invitation from the procuring authority following the evaluation of the information provided may participate in the procedure. The procuring authority may limit the number of candidates admitted to making an offer that will be invited to participate in the proceedings in accordance with Article 79. The market is awarded on the sole basis of the best value/price criterion, in accordance with Article 81, § 2, 3°.
§ 2. The Innovation Partnership aims at the development of an innovative product, service or work and the subsequent acquisition of the resulting supplies, services or work, provided that they correspond to the agreed levels of performance and the maximum costs between the procuring power and the participants.
The innovation partnership is structured in successive phases following the development of the stages of the research and innovation process, which can include the stage of the manufacture of products, the provision of services or the execution of the work. The innovation partnership establishes intermediate objectives that partners must achieve and provides for payment of compensation in appropriate instalments.
On the basis of these objectives, the procuring authority may decide, after each phase, to terminate the innovation partnership or, in the case of an innovation partnership established with several partners, to reduce the number of partners by ending individual contracts, provided that, in the market documents, it has indicated these possibilities and conditions of their implementation.
§ 3. Unless otherwise provided in this article, the procuring authority shall negotiate with the bidder(s) the initial offer and all subsequent offers, except for the final offer, with a view to improving its content.
Minimum requirements and allocation criteria are not negotiated.
§ 4. During the negotiation, the procuring authority ensures equal treatment of all bidders. To this end, it does not discriminately provide information that may benefit certain bidders. It shall notify in writing all bidders whose bids have not been eliminated under paragraph 5 of any changes to the technical specifications or other market documents other than those that define the minimum requirements. As a result of these changes, the procuring authority provides sufficient time to allow bidders to change their bids and resubmit them if necessary.
In accordance with Article 13, the procuring authority shall not disclose to other participants the confidential information provided by a candidate or bidder participating in the negotiations, without the written and prior agreement of the latter. This agreement does not take the form of a general renunciation but aims at specific information that is envisaged for communication.
§ 5. Negotiations during the innovation partnership procedures can take place in successive phases to limit the number of bids to be negotiated by applying the award criteria specified in the market notice or in the market documents. The procuring authority shall indicate, in the market notice or market documents, whether it will make use of this option.
During the selection of candidates, the procuring authority applies in particular the criteria relating to the capabilities of candidates in the field of research and development and the development and implementation of innovative solutions.
Only economic operators who have received an invitation from the procuring authority as a result of the assessment of the required information may submit research and innovation projects that are designed to meet the needs defined by the procuring authority and that existing solutions do not allow for coverage.
In market documents, the procuring authority defines the provisions applicable to intellectual property rights. In the event of an innovation partnership involving several partners, the procuring authority does not disclose, in accordance with Article 13, to other partners, the proposed solutions or other confidential information provided by a partner within the framework of the partnership without the written and prior agreement of that partner. This agreement does not take the form of a general renunciation but aims at specific information that is envisaged for communication.
§ 6. The procuring authority ensures that the structure of the partnership, including the duration and value of its various phases, takes into account the degree of innovation of the proposed solution and the conduct of the research and innovation activities required for the development of an innovative solution not yet available on the market. The estimated value of supplies, services or work is not disproportionate to the investment required for their development.
§ 7. The King may set out the additional procedural modalities for the innovation partnership.
Use of direct negotiated procedure with prior publication
Art. 41. § 1^er. Public procurement can only be passed by direct negotiated procedure with prior publication in the following cases:
1° for supplies and services valued below the corresponding threshold for European advertising;
2° for work whose estimated amount is less than 750,000 euros.
§ 2. In the direct negotiated procedure with prior publication, any interested economic operator may submit an offer in response to a market notice.
The minimum deadline for receipt of bids is twenty-two days from the date of receipt of the notice of contract. Article 37, §§ 3 to 5, is applicable.
The offer includes information for the selection requested by the procuring authority.
§ 3. The procuring authority may negotiate with bidders the initial offers and any subsequent offers they have submitted, with the exception of the final offers, with a view to improving their content.
Minimum requirements and allocation criteria are not negotiated.
§ 4. During the negotiation, the procuring authority ensures equal treatment of all bidders. To this end, it does not provide discriminatory information that may benefit certain bidders from others. It shall inform in writing all bidders whose bids have not been eliminated under paragraph 5, of any changes to the technical specifications or other market documents, other than those that define the minimum requirements. As a result of these changes, the procuring authority provides sufficient time to allow bidders to change their bids and resubmit them if necessary.
In accordance with Article 13, the procuring authority shall not disclose to other participants the confidential information provided by a candidate or bidder participating in the negotiations, without the written and prior agreement of the latter. This agreement does not take the form of a general renunciation but aims at specific information that is envisaged for communication.
§ 5. The direct negotiated procedure with prepublication may take place in successive phases to limit the number of bids to be negotiated by applying the allocation criteria specified in the notice of contract or in another market document. The procuring authority indicates, in the notice of contract or in another market document, whether it will make use of this option.
§ 6. When the procuring authority intends to conclude the negotiations, it shall inform the bidders remaining in the bid and shall set a common deadline for the submission of any new or revised bids. It verifies that the final offers meet the minimum requirements and comply with Article 66, § 1^er, it assesses the final offers on the basis of the award criteria and assigns the market under sections 79 to 84.
When the procuring authority decides not to negotiate, the initial offer is as a final offer.
§ 7. The King may determine the additional procedural arrangements for the direct negotiated procedure with prior publication.
Use of negotiated proceedings without prior publication
Art. 42. § 1^er. It can only be processed by negotiated procedure without prior publication, but if possible after consultation with several economic operators, in the following cases:
1° in the case of a public contract of work, supplies or services, where:
(a) the expenditure to be approved, excluding the value added tax, is less than the amount determined by the King;
(b) to the extent strictly necessary, where the compelling urgency resulting from unpredictable events for the procuring power does not allow for the time required by the open, restricted or competitive procedure with negotiation. The circumstances invoked to justify the imperative emergency cannot, in any case, be attributed to the procuring power;
(c) no application for participation or request for appropriate participation, any appropriate offer or offer has been filed as a result of an open or restricted procedure, provided that the initial market conditions are not substantially amended and, for markets equal to or greater than the thresholds for European advertising, that a report be communicated to the European Commission at its request.
An application for participation is not considered appropriate when the economic operator concerned must or may be excluded under sections 67 to 70 or does not meet the selection criteria established by the procuring authority under section 71. An offer is not considered appropriate when it is unrelated to the market because it is clearly not able, without substantial modifications, to meet the requirements and requirements of the procuring power specified in the market documents.
(d) work, supplies or services may only be provided by a specified economic operator for one of the following reasons:
(i) the purpose of the market is the creation or acquisition of a work of art or a unique artistic performance;
(ii) there is no competition for technical reasons;
(iii) protection of exclusive rights, including intellectual property rights.
Exceptions in points (ii) and (iii) apply only where there is no alternative or reasonable replacement solution and the lack of competition is not a result of an artificial restriction of market conditions;
2° in the case of a public contract of work or services, where new work or services consisting of the repetition of similar work or services are assigned to the original contract by the same procuring authority, provided that such work or services are in accordance with a basic project and that this project has been the subject of an initial contract passed according to one of the procedures referred to in section 35, paragraph 1^er. The basic project specifies the extent of possible additional work or services and the terms and conditions of their assignment. However, the possibility of using this procedure must be indicated as soon as the first market is competitive and the total amount envisaged for the additional work or services must already be taken into consideration by the procuring authorities to determine whether or not the thresholds for European advertising are met. The decision to award repetitive contracts must also take place within three years after the initial contract is concluded;
3° where supplies or services are purchased under particularly advantageous conditions, either from a supplier permanently certifying its commercial activities, or from the curators, agents responsible for a transfer under the authority of justice or liquidators of a bankruptcy, judicial reorganization or similar procedure existing in national legislation or regulations;
4° in the case of a public supply market, when:
(a) the products concerned are manufactured solely for the purposes of research, experimentation, study or development; this provision does not include production in quantities to establish the commercial viability of the product or to amortize research and development costs;
(b) additional supplies are to be made by the original supplier and are intended, either for the partial renewal of supplies or facilities, or for the extension of existing supplies or facilities, where the supplier change would require the procuring authority to acquire supplies with different technical characteristics resulting in in incompatibility or technical difficulties of disproportionate use and maintenance. The duration of these markets, as well as renewable markets, may not, as a general rule, exceed three years;
(c) these are listed and purchased supplies at a stock exchange;
5° in the case of a public service market, where the service market in question follows a competition and must, in accordance with the applicable rules, be awarded to the recipient or to one of the winners of this competition. In the latter case, all winners must be invited to participate in the negotiations.
The King may also authorize the use of the negotiated procedure without prior publication, for the public procurement of supplies that He determines, if possible after consultation with several economic operators, when it comes to the purchase of opportunity, in accordance with the conditions that He sets. The estimated value of these markets cannot reach the ceiling that it fixes and which must necessarily be below the corresponding threshold for European advertising.
§ 2. The procuring authority may negotiate with bidders the initial offers and any subsequent offers they have submitted to improve their content.
The allocation criteria are not negotiated. For markets with an estimated amount equal to or greater than the thresholds for European advertising, the minimum requirements are not negotiated either.
For markets with an estimated amount below the above-mentioned thresholds, minimum requirements may be negotiated, provided that this is not excluded in market documents.
§ 3. Unless otherwise provided in the market documents, they are not applicable to the negotiated procedure without prior publication for markets whose estimated amount is less than the corresponding threshold for European advertising:
1° Article 69 concerning optional grounds of exclusion;
2° Article 71 concerning selection criteria.
In addition, unless otherwise provided in the market documents, section 81 concerning the attribution criteria is not applicable when the procedure is used without prior publication in the following cases:
1° the various cases in which only an economic operator can be consulted as referred to in paragraph 1^er, 1°, d), 2° or 4°, b) regardless of the estimated amount;
2° in the case of the imperious emergency as referred to in paragraph 1^er, 1°, b), for markets with an estimated value less than the corresponding threshold for European advertising;
3° in respect of listed and purchased supplies at a raw material exchange as referred to in paragraph 1^er4°, c) for markets with an estimated value less than the corresponding threshold for European advertising;
4° in the case of acquisitions of supplies or services purchased under particularly advantageous conditions as referred to in paragraph 1^er, 3°, for markets with an estimated value less than the thresholds for European advertising, as well as, where applicable, for procurement of opportunity referred to in paragraph 1^erParagraph 2.
§ 4. The King may determine the additional procedural arrangements for this procedure.
CHAPTER 3. - Techniques and instruments for electronic and aggregate markets
Framework agreements
Art. 43. § 1^er. A procuring authority may enter into framework agreements as long as it applies the procedures provided for in this Act.
Contracts based on a framework agreement can only be passed between, on the one hand, a procuring power or procuring powers clearly identified in the call to competition or in the invitation to confirm interest, and on the other hand, one or more economic operators parties to the framework agreement as concluded.
§ 2. When awarding contracts based on a framework agreement, no substantial changes can be made to the terms already set out in the framework agreement, particularly when the framework agreement is concluded with a single economic operator.
The duration of a framework agreement, as well as the duration of the contracts based on this framework agreement, may not exceed four years, except in exceptional cases duly motivated, including the purpose of the framework agreement.
§ 3. The procuring authority mentions in the market notice whether it envisages the conclusion of the framework agreement with one or more economic operators.
§ 4. When a framework agreement is concluded with a single economic operator, the contracts based on this framework agreement are awarded within the limits of the conditions set out in the framework agreement.
For the award of these contracts, the procuring authorities may consult in writing the economic operator party to the framework agreement, asking him to complete, if necessary, his offer.
§ 5. When a framework agreement is concluded with several economic operators, it is executed in one of the following ways:
1° without competition, according to the terms and conditions of the framework agreement, where the framework agreement defines all the conditions governing the work, services and supplies concerned, or the objective conditions to determine which economic operator party to the framework agreement is responsible for the execution; market documents relating to the framework agreement specify these conditions;
2° where the framework agreement defines all the conditions governing the work, supplies and services concerned, in part without competition in accordance with point 1° and in part with competition between the economic operators parties to the framework agreement in accordance with point 3°, in the event that this possibility was stipulated by the procuring authorities in the market documents relating to the framework agreement. The choice to acquire specific works, supplies or services through a re-competition or directly under the terms and conditions set out in the framework agreement shall be based on objective criteria, which are set out in the contract documents relating to the framework agreement. These market documents also specify the conditions that may be subject to competition;
The possibilities set out in paragraph 1^er this item also applies to any set of a framework agreement whose conditions governing the work, services and supplies concerned are set out in the framework agreement, regardless of whether any conditions governing the work, supplies and services involved in other lots have been or have not been defined.
3° by a competition from the economic operators parties to the framework agreement, where it does not define all the conditions governing the work, services and supplies concerned.
§ 6. The competition referred to in paragraph 5, 2° and 3° is based on the same conditions as those applied to the award of the framework agreement, the terms of which are, if necessary, specified and which are, if necessary, supplemented by other conditions set out in the market documents relating to the framework agreement, as follows:
1° for each market to pass, the procuring authorities consult in writing the economic operators who are able to execute the market;
2° the procuring authorities set a sufficient time to allow the submission of tenders for each specific market, taking into account such elements as the complexity of the subject matter of the market and the time necessary for the transmission of tenders;
3° bids are submitted in writing and are not open until the expected response period expires;
4° the procuring authorities assign each contract to the bidder who has presented the best offer on the basis of the award criteria set out in the contract documents relating to the framework agreement, with the exception of the contracts referred to in section 92.
Dynamic acquisition systems
Art. 44. § 1^er. A procuring authority may use a dynamic procurement system for contracts of work, supplies and common-use services that are commonly available on the market and whose characteristics meet its needs.
This system works as a fully electronic process and is open, throughout the validity period of the acquisition system, to any economic operator meeting the selection criteria. It may be subdivided into categories of products, works or services defined objectively on the basis of market characteristics to be achieved in the category concerned. These characteristics may also refer to the maximum permissible size of certain subsequent specific markets or to a specific geographic area in which certain subsequent specific markets will be executed.
§ 2. To move a market through a dynamic acquisition system, the procuring power follows the rules of the restricted procedure. All candidates meeting the selection criteria are admitted to the system and their number is not limited in accordance with section 79. When the procuring authorities have subdivided the system into product, work or service categories in accordance with paragraph 1^erParagraph 2, specify the selection criteria applicable to each category.
Notwithstanding section 37, the following times shall apply:
1° the minimum deadline for receipt of applications for participation is 30 days from the date the notice is sent. No additional time limit for receipt of requests for participation is applicable after the invitation to tender for the first specific market within the dynamic acquisition system;
2° the minimum deadline for receiving bids is at least ten days from the date of sending the invitation to bid. Article 37, §§ 3 and 5, is not applicable.
§ 3. As part of a dynamic acquisition system, all communications are carried out by electronic means only in accordance with Article 14, §§ 1^er and 5 to 7.
§ 4. No fees may be charged before or during the validity period of the dynamic acquisition system to interested economic operators or participating in the dynamic acquisition system.
§ 5. The King sets out the additional material and procedural arrangements that govern the dynamic acquisition system.
Electronic auctions
Art. 45. § 1^er. The procuring authority may use electronic auctions where new prices are presented, revised downwards, and/or new values relating to certain elements of bids.
To this end, the procuring authority structure the electronic auction as an iterative electronic process, which comes after a first complete evaluation of the offers, allowing them to be classified using automatic evaluation methods.
Since some public service markets and some public works markets for intellectual benefits, such as design of work, cannot be classified using automatic evaluation methods, they are not subject to electronic auctions.
§ 2. In open or restricted or competitive proceedings with negotiation, a procuring authority may precede the award of an electronic auction to the extent that the content of market documents, in particular technical specifications, can be accurately determined and that this applies to contracts of work, supplies or services.
Under the same conditions, the electronic auction may be used during the competition of the parties to a framework agreement, as well as for the markets passed through a dynamic acquisition system.
§ 3. The electronic auction is one of the following features of the offers:
1° only on prices when the market is awarded on the sole basis of the price;
2° on the prices and/or the new values of the elements of the offers indicated in the documents of the market when the market is awarded on the basis of the best value/price or the bidder having presented the offer at the lowest cost according to a cost/effective approach.
§ 4. Before conducting an electronic auction, the procuring authority shall conduct a first full evaluation of the offers in accordance with the allocation criteria and the weighting associated with them.
An offer is considered admissible as long as it has been submitted by a bidder who has not been excluded under sections 67 to 70 and who meets the selection criteria and whose offer complies with the technical specifications, and is not irregular, unacceptable or inappropriate.
§ 5. The King sets out the additional material and procedural arrangements that govern the electronic auction.
Electronic catalogues
Art. 46. § 1^er. When the use of electronic means of communication is required, the procuring authority may require that offers be presented in the form of an electronic catalogue or that they include an electronic catalogue.
§ 2. Electronic catalogues are prepared by candidates or bidders to participate in a given procurement procedure in accordance with the technical specifications and format provided by the procuring authority.
In addition, electronic catalogues meet the requirements for electronic communication tools as well as any additional requirements defined by the procuring authority.
§ 3. The King sets out the additional material and procedural arrangements that govern the use of electronic catalogues.
Central and central procurement activities
Art. 47. § 1^er. A procuring authority may acquire supplies and/or services from a procurement plant offering the centralized procurement activities referred to in section 2, 7°, a).
It may also benefit from the centralized procurement activities of a purchasing power plant as referred to in section 2, 7°, (b), in respect of works, supplies and/or services.
1° through a market entered into by the said purchasing centre;
2° as part of a dynamic acquisition system set up by a purchasing power plant; or
3° to the extent specified in Article 43, § 1^er, paragraph 2, by means of a framework agreement concluded by this purchasing power plant.
Where a dynamic acquisition system established by a procurement power plant can be used by other procuring authorities, this is reported in the market notice setting the said dynamic acquisition system in place.
§ 2. A procuring power that uses a purchasing power plant is exempt from the obligation to organize a procurement procedure itself.
However, the relevant procuring authority is responsible for the performance of the obligations relating to the parties to which it is responsible, such as:
1° the procurement of a market within the framework of a dynamic acquisition system established by a purchasing power plant;
2° competition under a framework agreement entered into by a purchasing power plant;
3° pursuant to Article 43, § 5, 1° or 2°, the choice of the economic operator part of the framework agreement that will perform a task given under the framework agreement concluded by a purchasing power plant.
§ 3. As part of all procurement procedures carried out by a procurement centre, electronic means of communication are used in accordance with the requirements of section 14.
§ 4. The procuring authorities may, without applying the procedures provided for in this Act, assign to a procurement centre a public procurement contract for the provision of centralized procurement activities.
These public service markets may also include the provision of auxiliary purchasing activities.
Occasional joint markets
Art. 48. Two or more award-winning authorities may agree to move specific markets together.
When a procurement procedure is conducted jointly in its entirety on behalf of and on behalf of all the relevant procuring authorities, they are jointly responsible for the fulfilment of their obligations. This is also the case when a single procuring authority manages the procurement process, acting on its own behalf and on behalf of other relevant procuring powers.
Where a procurement procedure is not carried out in its entirety on behalf of and on behalf of the relevant procuring authorities, they are solely responsible for the joint parties. Each procuring authority shall be solely responsible for the performance of its obligations for the parties of the proceedings on its own behalf and on its own behalf.
The King may establish additional material and procedural arrangements for the execution of these joint markets.
Markets involving procuring powers of different Member States
Art. 49. § 1^er. Without prejudice to articles 30 and 31, the procuring powers of different Member States may jointly pass a public market, use centralized procurement activities proposed by purchasing power stations located in another Member State, enter into a framework agreement, establish a dynamic procurement system or establish a joint entity. They may also, within the limits set out in Article 43, § 1^er, paragraph 2, contracting on the basis of a framework agreement or a dynamic acquisition system.
The procuring authorities do not use the means provided for in paragraph 1^er in order to avoid the application of mandatory provisions of public law in accordance with the law of the Union to which they are subject.
§ 2. Centralized procurement activities are provided by a purchasing power plant located in another Member State in accordance with the national provisions of the Member State in which the purchasing power plant is located.
The national provisions of the Member State in which the purchasing power plant is located also apply:
1° to contracting under a dynamic acquisition system;
2° to competition under a framework agreement;
3° to the choice, under Article 43, § 5, 1 or 2°, of the economic operator part of the framework agreement, which will perform a given task.
§ 3. Several procuring powers of different Member States may jointly enter a public market, enter into a framework agreement or set up a dynamic procurement system. They may also, within the limits set out in Article 43, § 1^er, paragraph 2, contracting on the basis of a framework agreement or dynamic acquisition system. Unless the necessary elements have been provided by an international agreement between the Member States concerned, the participating procuring powers conclude an agreement that determines the following:
(1) the responsibilities of the parties and the relevant national provisions;
2° the internal organization of the procurement procedure, including the management of the procedure, the distribution of work, supplies or services to be acquired, and the conclusion of contracts.
A participating procuring authority fulfils its obligations under this Act when it acquires work, supplies or services of a procuring authority that is responsible for the procurement process. When determining the responsibilities and applicable national law referred to in paragraph 1^er, 1°, the participating procuring powers may divide specific responsibilities between them and determine the applicable provisions of the national law of each of the respective Member States. For joint public procurement, market documents aim at the division of responsibilities and applicable national law.
§ 4. When several procuring powers of different Member States have established a joint entity, including a European group of territorial cooperation under Regulation No. 1082/2006 of the European Parliament and of the Council of 5 July 2006 on a European group of territorial cooperation or other entities under the law of the Union, the participating procuring powers agree, by a decision of the competent body of the joint entity, that the national rules on procurement shall apply
1° the national provisions of the Member State in which the head office of the joint entity is located;
2° is the national provisions of the Member State in which the joint entity operates.
The agreement referred to in paragraph 1^er may be valid either for an indefinite period, if incorporated in the statutes of the joint entity, for a specified period or for certain types of markets or for one or more specific markets.
Competition
Art. 50. The procuring authority may organize a competition by applying procedures that are adapted to the provisions of title 1^er and title 2, chapter 1^erand the additional material and procedural modalities to be determined by the King.
Access to contest participants is not limited:
1° in the territory or part of the territory of the Kingdom;
2° on the grounds that participants would be required under certain regulatory provisions to be either natural persons or legal persons.
When competitions are limited to a limited number of participants, the procuring authority establishes clear and non-discriminatory selection criteria. In all cases, the number of candidates invited to participate in the competitions must be sufficient to guarantee real competition.
CHAPTER 4. - Procedure
Section 1^re. - Preparation
Pre-market consultations
Art. 51. Before embarking on a procurement procedure, the procuring authority can conduct market consultations with a view to preparing the procurement and informing the economic operators of its projects and requirements.
For this purpose, the procuring authority 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 candidates or bidders
Art. 52. § 1^er. Where a candidate or bidder, or a company related to a candidate or bidder, has given notice to the procuring authority, whether or not under section 51, or has otherwise participated in the preparation of the procurement proceedings, the procuring authority shall take appropriate measures to ensure that competition is not distorted by the participation of that candidate or bidder. Such measures shall, for markets equal to or greater than the corresponding thresholds for European advertising, be recorded in the information referred to in Article 164, §§ 1^er or 2.
These measures include providing other candidates and bidders with useful information exchanged in the context of the participation of the above-mentioned candidate or bidder in the preparation of the proceedings, or resulting from such participation, and setting adequate time limits for the receipt of the tenders.
"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.
For the purposes of paragraph 3, "dominant influence" is presumed in the cases referred to in section 2, 2°.
§ 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 is given the opportunity to prove by means of a written justification that his or her prior participation is not likely to distort competition.
A period of not less than twelve days is granted to the candidate or bidder to provide the justification referred to in paragraph 1^er, from the request of the procuring authority. The applicant or bidder concerned shall provide proof of the sending of this justification.
The request of the procuring authority must also be in writing.
§ 3. The King may, for markets under the threshold for European advertising and subject to the conditions that it sets, provide for exemptions from the provisions of this article.
Technical specifications
Art. 53. § 1^er. The procuring authority includes in market documents the technical specifications, which define the required characteristics of work, supplies or services.
These characteristics may refer to the process or specific method of production or execution of the requested work, supplies or services or to a process specific to another stage of their life cycle even when these factors are not part of their material content, provided they are related to the subject matter of the market and proportionate to its value and objectives.
Technical specifications may specify whether the transfer of intellectual property rights will be required.
For all public markets intended for use by natural persons, whether the general public or the procuring authority, the technical specifications are developed, except in duly justified cases, to take into account the accessibility criteria for persons with disabilities or the concept of design for all users.
When mandatory accessibility requirements have been determined by a legal act of the European Union, the technical specifications are defined by reference to these standards with respect to accessibility criteria for persons with disabilities or the concept of design for all users.
§ 2. The technical specifications give economic operators equal access to the procurement procedure and can only have unwarranted obstacles to open public procurement to competition raised.
§ 3. Without prejudice to the mandatory national technical rules, to the extent that they are consistent with European Union law, the technical specifications are formulated in one of the following ways:
1° in terms of performance or functional requirements, including environmental characteristics, provided that they are sufficiently specific to allow bidders to determine the purpose of the market and the procuring authority to award the contract;
2° either by reference to technical specifications and by order of preference, to national standards transposing European standards, to European technical assessments, to common technical specifications, to international standards, to other technical references developed by European standards bodies, or, in their absence, to national standards, national technical approvals or national technical specifications in the design, calculation and realization of works and use of supplies. Each reference is accompanied by the reference "or equivalent";
3° in terms of performance or functional requirements referred to in 1° referring to the specifications referred to in 2° as a means of presumption of conformity to these performance or functional requirements;
4° is by reference to the specifications referred to in 2° for certain characteristics and to the performance or functional requirements referred to in 1° for other characteristics.
§ 4. The technical specifications may not refer to a particular manufacture or origin or process that characterizes the products or services provided by a specific economic operator, or to a mark, patent or type, origin or production that would have the effect of promoting or eliminating certain companies or products.
This reference or reference is permitted, on an exceptional basis, only:
1° where it would not be possible to provide a sufficiently precise and intelligible description of the subject-matter of the market under paragraph 3;
2° when justified by the object of the market.
In the case referred to in paragraph 2, 1°, the reference or reference shall be accompanied by the words "or equivalent".
In the event of non-compliance by the procuring authority with the obligations referred to in this paragraph, the bidder may present an equivalent product or service.
§ 5. When the procuring authority makes use of the possibility, as provided in paragraph 3, 1°, to formulate technical specifications in terms of performance or functional requirements, it does not reject an offer of works, supplies or services conforming to a national standard transposing a European standard, a European technical approval, a common technical specification, an international norm or a technical repository developed by a European standarding agency, if these specifications are consistent with the requirements or specifications set by a European standarding
In its offer, the bidder proves, by any appropriate means, including those referred to in section 55, that the work, supplies or services, in accordance with the standard, meet the performance conditions or functional requirements imposed by the procuring authority.
§ 6. When the procuring authority makes use of the possibility to refer to the technical specifications referred to in paragraph 3, 2°, it does not reject an offer on the ground that the work, supplies or services offered are not in accordance with the technical specifications to which it referred, provided that the bidder proves in its offer, by any appropriate means, including the evidence referred to in section 55, that the proposed solutions meet the requirements defined by the technical specifications.
§ 7. If the work, supplies or services are defined by both plans, models and samples, the plans shall determine, unless otherwise provided in the market documents, the form of the product, its dimensions and the nature of the material of which it is constituted. Models are only considered for finishing control and samples for quality.
Labels
Art. 54. § 1^er. Where the procuring authority wishes to acquire works, supplies or services with certain environmental, social or other characteristics, it may, in the technical specifications, impose criteria or conditions of performance of the contract, require a particular label as a means to prove that the work, services or supplies correspond to the required characteristics provided that the following conditions are met:
1° the label requirements relate only to criteria that are related to the subject matter of the market and are specific to defining the characteristics of the work, supplies or services that are the subject of the market;
2° label requirements are based on objective and non-discriminatory criteria;
3° the label is established by an open and transparent procedure to which all concerned parties, such as public bodies, consumers, social partners, manufacturers, distributors or non-governmental organizations, may participate;
4° the label is accessible to all interested parties;
5° the label requirements are fixed by a third party on which the economic operator who seeks to obtain the label cannot exercise decisive influence.
When the procuring authority does not require work, supplies or services to meet all label requirements, it specifies the requirements that are covered.
The procuring authority that requires a particular label accepts all labels that confirm that work, supplies or services meet equivalent label requirements.
When an economic operator obviously does not have the opportunity to obtain the specific label specified by the procuring authority or an equivalent label within the time frames set for reasons not attributable to it, the procuring authority accepts other appropriate means of evidence such as, for example, a technical record of the manufacturer, provided that the relevant economic operator determines that the particular work, supplies or services that it must provide meet the specific requirements of the manufacturer However, with respect to markets with an estimated value lower than the corresponding threshold of European advertising, the procuring authority must always take into account other evidence, provided that the latter demonstrate that it is satisfied with the requirements for the particular label or specific requirements.
§ 2. When a label meets the conditions set out in paragraph 1^er, 2° to 5°, but also sets requirements that are not related to the object of the market, the procuring power does not require the label in itself. In this case it can nevertheless define the technical specifications by reference to the detailed specifications of this label or, if necessary, to the parts of them that are related to the object of the market and are specific to defining the characteristics of this object.
§ 3. The procuring authority refers to the manner in which the label is used in the market documents, as specified below:
1° where the label is required as a means to prove that the work, services or supplies correspond to the required characteristics, in accordance with paragraph 1^er and that this applies to a market for which the value is equal to or greater than the corresponding threshold for European advertising, by means of the following reference or a similar mention:
"This label is required in accordance with Article 54, § 1^erof the Public Procurement Act of 17 June 2016. It meets all the conditions mentioned in the latter provision. The label requirements include only criteria that are related to the subject matter of the market and are specific to defining the characteristics of the works/supplies/services that are the subject of the market. ";
2° where the label is required as a means to prove that the work, services or supplies correspond to the required characteristics, in accordance with paragraph 1^er and that this applies to a market for which the estimated value is less than the corresponding threshold for European advertising, by means of the following reference or a similar mention:
"It is returned to the desired label in execution of Article 54, § 1^erof the Public Procurement Act of 17 June 2016. It meets all the conditions mentioned in the latter provision. The label requirements include only criteria that are related to the subject matter of the market and are specific to defining the characteristics of the works/ supplies/services that are the subject of the market. However, it is also always taken into account other appropriate evidence, as long as the latter demonstrate that it is satisfied with the requirements for the particular label or specific requirements. ";
3° where the label is not in itself required but the technical specifications are detailed by retaking, in accordance with paragraph 2, some of the specifications of this label, by means of the following reference or a similar mention:
"It is referred to the label in accordance with Article 54, § 2, of the Law of 17 June 2016 on public procurement. It meets the conditions mentioned in Article 54, § 1^er2° to 5°. Thus, the label is not in itself required but the technical specifications are detailed by retaking some of the specifications of this label. Further, other appropriate evidence is always taken into account, provided that the evidence demonstrates that it is satisfied with the specific requirements. ".
Test reports, certification and other evidence
Art. 55. § 1^er. The procuring authority may require that economic operators provide, as a means of proof of compliance with the requirements or criteria set out in the technical specifications, the attribution criteria or the conditions of execution, a test report of a conformity assessment body or a certificate issued by such an organization.
When the procuring authority requests that certificates issued by a particular conformity assessment body be submitted to it, it also accepts certificates from other equivalent conformity assessment bodies.
For the purposes of this paragraph, "conformity assessment body" means an organization carrying out conformity assessment activities such as calibration, testing, certification and inspection, accredited in accordance with Regulation No. 765/2008 of the European Parliament and the Council of 9 July 2008 establishing the requirements for the certification and monitoring of the market for the marketing of products and repealing Regulation (EEC) No. 339/93 of the Council.
§ 2. The procuring authority accepts other appropriate evidence than those referred to in paragraph 1^ersuch as a manufacturer's technical record where the economic operator concerned did not have access to the certificates or test reports referred to in paragraph 1^er or the possibility of obtaining them within the specified time limits, provided that the lack of access is not attributable to the economic operator concerned and as long as the operator determines and the work, supplies or services that it provides meet the requirements or criteria set out in the technical specifications, the criteria for attribution or the conditions of performance of the market.
Variants and options
Art. 56. § 1^er. The procuring authority may authorize bidders to introduce or impose variations or options on them to do so. It mentions in the notice of contract or in market documents in the event of a negotiated procedure without prior advertising if it authorizes or imposes the introduction of variants or options. In the absence of such a reference, no variant or option will be allowed.
For markets with an estimated value less than the thresholds for European advertising, bidders may also, by derogation from paragraph 1 and in the absence of a clause contrary to market documents, introduce variants or options without reference to the market notice or market documents. These variants or options are called "free variations" and "free options".
The variants and options are related to the object of the market.
§ 2. With respect to the variants and options required and authorized, the procuring authority refers to the minimum requirements to be met in market documents and the specific requirements for their mode of introduction. The requirement to mention minimum and specific requirements for the introduction does not apply to the alternatives or free options referred to in paragraph 1^erParagraph 2.
The procuring authority refers to market documents if variants can only be introduced provided that a basic offer is also filed. However, options cannot be introduced without a basic offer or, where applicable, without a variant. Market documents must refer to the latter obligation.
The procuring authority ensures that the selected allocation criteria may apply to the required and authorized variants that meet the minimum requirements and the basic offers.
§ 3. For procurement procedures for public procurement of supplies or services, the procuring authority does not reject a variant or option on the sole ground that it would, if retained, result in either a service market instead of a supply market or a supply market instead of a service market.
§ 4. The procuring power is never obliged to lift an option, either when concluding, or during the execution of the market.
§ 5. The King may decide on the additional material and procedural terms in respect of variants and option for the procedures it determines.
Firm and conditional sliced market and renewal clauses
Art. 57. When the procuring authority demonstrates the need, it may use a split market in one or more firm slices and one or more conditional slices. Although the conclusion of the market concerns the entire market, it only engages the procuring power for firm slices. The execution of each conditional sentence shall be subject to a decision of the procuring authority to be notified to the adjudicator in accordance with the terms set out in the original contract documents. The enforcement of the conditional sentence cannot change the overall nature of the market.
Upon conclusion, a contract may include one or more extensions, as described in the initial market documents. The total duration, including renewals, may generally not exceed four years from the conclusion of the market. Reappointment cannot result in a change in the global nature of the market.
The provisions of this article shall be drafted in a clear, precise and univocal manner. These clauses indicate the scope of application and the nature of any consequences that may result from it and the conditions under which it may be used.
The King may set out additional terms for the use of firm and conditional-size markets, as well as for the use of renewal clauses.
Field Procurement Division
Art. 58. § 1^er. The procuring authority may decide to make a contract in the form of separate lots, in which case it determines its nature, volume, object, distribution and characteristics in market documents.
For markets of supplies, services and works whose estimated amount is equal to or greater than the revised European threshold for European advertising, as applicable to public procurements of supplies and services passed by federal procuring authorities, all procuring authorities must consider the division of the market into lots and, if they decide not to divide into lots, the main reasons must be mentioned in the documents of the market or in the information referred to § 164^er.
If the procuring authority chooses to enter a market in the form of separate lots, it has the right to assign only some of them and, eventually, to decide that the other lots will be the subject of one or more new markets, if necessary according to another procurement procedure.
In the market notice, the procuring authority indicates whether it is possible to submit an offer for a single batch, for multiple lots or for all lots.
§ 2. The procuring authority may, even where it is possible to submit an offer for several lots or all lots, limit the number of lots that may be assigned to a single bidder, provided that the maximum number of batches per bidder is included in the notice of contract. The procuring authority indicates in market documents the objective and non-discriminatory criteria or rules that it intends to apply to determine which lots will be assigned when the application of the award criteria would result in assigning a bidder a number of lots higher than the maximum number.
Time frame
Art. 59. § 1^er. By setting the deadline for receipt of tenders and requests for participation, the procuring authority takes into account the complexity of the market and the time required to prepare the tenders, without prejudice to the minimum deadlines set out in sections 36 to 41.
§ 2. Where bids can only be made following a site visit or after on-site consultation of documents supporting the market documents, the deadlines for receipt of bids, which are higher than the minimum deadlines set out in sections 36 to 41, are decided so that all the economic operators concerned may be aware of all the information necessary for the formulation of their offers.
§ 3. The procuring authority extends the deadlines for receiving the offers so that all the relevant economic operators can be aware of all the information necessary for the formulation of their offers in the following cases:
1° where, for any reason, an additional information, although requested in due course by the economic operator, is not provided at least six days before the expiry of the deadline for the receipt of the offers. In the case of an accelerated procedure referred to in Article 36, § 3, and Article 37, § 4, this period is four days;
2° where significant changes are made to market documents.
The duration of the extension is proportionate to the importance of the information or modification.
Where the additional information has not been requested in a timely manner or is of a negligible importance for the preparation of admissible offers, the procuring authority is not required to extend the deadlines.
Section 2. - Publication and transparency
Pre-information notice
Art. 60. The procuring authority may publicize its intentions with respect to procurement through the publication of a notice of pre-information.
The pre-information notice does not serve as a market notice.
The maximum duration of the period covered by the pre-information notice is twelve months from the date of transmission of the notice for publication.
The King sets out the information that must be contained in the pre-information notice.
Market Opinion
Art. 61. The procuring authority publishes a market notice for public procurement and framework agreements, with the exception of the following:
1° where it is used, in accordance with Article 42, of the negotiated procedure without prior publication;
2° in cases where the competitive procedure is used with negotiation and competitive dialogue, for the work, supplies and services for which, under an open or restricted procedure, only irregular or unacceptable offers have been submitted and for which a market notice should not, if any, be published, provided that the conditions of article 38, § 1, 2° are met;
3° for contracts based on a framework agreement;
4° for the markets passed through a dynamic acquisition system, during the validity of the acquisition system and without prejudice to the requirement to publish the notice of contract for the launch of the acquisition system.
The King sets out the information that must be contained in the market notice.
Contract award notice
Art. 62. For public procurement or framework agreements with an estimated amount equal to or greater than the thresholds for European advertising, the procuring authority shall send a contract award notice relating to the results of the procurement procedure. This notice is sent no later than 30 days after the conclusion of the contract or framework agreement.
In the case of a framework agreement entered into pursuant to section 43, the procuring authority does not have the obligation to send a notice regarding the results of the procurement procedure for each contract based on the framework agreement.
Paragraph 1 applies, however, to each market based on a dynamic procurement system, even if the procuring authority may choose to consolidate the relevant markets on a quarterly basis. In such a case, the procuring authority sends these notices consolidated no later than thirty days after the end of each quarter.
Some information on the procurement of the market or the framework agreement may not be published in the event that their disclosure would impede the application of the laws, would be contrary to the public interest or would prejudice the legitimate business interests of an economic operator in particular, public or private, or could adversely affect fair competition between economic operators.
The King sets out the information contained in the notice of contract award.
Drafting and publication of notices
Art. 63. The King sets out the terms and conditions for publication of notices, both at the national and European level.
Provision of market documents electronically
Art. 64. § 1^er. The procuring authority provides, by electronic means, free, unrestricted, complete and direct access to market documents from the date of publication of a market notice. The text of the notice specifies the internet address to which market documents are accessible.
Where it is not possible or mandatory to offer free, unrestricted, complete and direct access by electronic means to certain market documents for one of the reasons mentioned in article 14, § 2, paragraph 1^er, the procuring authority may indicate in the opinion that the relevant market documents will be transmitted by other means than electronic means, in accordance with Article 14, § 2, paragraph 3. In this case also, access is free.
In such a case, the deadline for tendering is extended by five days, except for the appropriately motivated emergency cases referred to in articles 36, § 3, 37, § 4, and 38, § 3, paragraph 3.
Where it is not possible to provide free, unrestricted, complete and direct electronic access to certain market documents because the procuring authority intends to apply Article 13, § 3, the procuring authority indicates in the notice the measures it imposes in order to protect the confidentiality of the information, as well as the terms and conditions of access to the documents concerned. In such a case, the deadline for tendering is extended by 5 days, except for the appropriately motivated emergency cases referred to in articles 36, § 3, 37, § 4, and 38, § 3, paragraph 3.
§ 2. The procuring authority shall provide to all economic operators participating, in any way, in the procurement process, additional information relating to market documents and any supporting documentation not later than six days before the deadline for receipt of tenders, provided that the request has been made in due course. In the case of an accelerated procedure referred to in Article 36, § 3, and Article 37, § 5, this period is four days.
Invitation of candidates
Art. 65. In limited procedures, competitive dialogues, innovation partnerships and competitive procedures with negotiation, the procuring authority simultaneously and in writing invites selected candidates to present their offers or, in the case of competitive dialogue, to participate in the dialogue.
Invitations referred to in paragraph 1^er mention the e-mail address to which market documents were made available directly electronically. Invitations are accompanied by market documents, where they have not been free, without restriction, complete and direct access, for the reasons set out in Article 64, § 1^er, paragraph 2 or 4, and are not already made available by other means.
The King determines the other information that must be contained in the invitation, as well as the additional terms.
Section 3. - Selection of participants and award of contracts
General principles for selection and attribution
Art. 66. § 1^er. The contracts are awarded on the basis of the allocation criteria or criteria established in accordance with Article 81, provided that the procuring authority has ascertained that all of the following conditions are met:
1° the offer conforms to the requirements, conditions and criteria set out in the notice of contract and in the documents of the market, taking into account, where applicable, variations or options;
2° the offer comes from a bidder who is not excluded from market access on the basis of articles 67 to 70 and meets the selection criteria set by the procuring authority and, where applicable, the non-discriminatory rules and criteria referred to in Article 79, § 2, paragraph 1^er.
Without prejudice to paragraph 2, where the procuring authority finds that the offer of the bidder to whom it intends to award does not comply with the obligations applicable in the fields of environmental, social or labour law and referred to in Article 7, it decides not to assign the contract to the bidder who has given the offer, provided that it is an obligation whose non-compliance is also penalized. In other cases where it finds that this offer does not meet the above-mentioned obligations, it may proceed in the same manner.
§ 2. For markets with an estimated amount equal to or greater than the thresholds set for European advertising, the procuring authority may, in the case of an open procedure, control bids after the verification of the absence of grounds for exclusion and compliance with the selection criteria on the basis of the only European Market Document. In these cases, the evaluation of bids may be carried out at this stage without further examination of the absence of grounds for exclusion and the application of the selection criteria. Before resorting to this possibility, however, the procuring authority must have verified the absence of tax and social debts in accordance with section 68.
For markets with an estimated amount less than the thresholds for European advertising, the King may identify cases where the procuring authority may conduct the evaluation of offers prior to the control of the absence of grounds for exclusion and the application of the selection criteria, as well as the additional terms and conditions thereof.
When making use of the possibility referred to in paragraph 1^er and 2, it ensures that an audit of the lack of grounds for exclusion and compliance with the selection criteria is conducted in an impartial and transparent manner, so that no contract is awarded to a bidder who should have been excluded or who does not meet the selection criteria.
§ 3. Without prejudice to Article 39, § 6, paragraph 2, where the information or documents that must be submitted by the candidate or bidder are or appear incomplete or incorrect or where certain documents are missing, the procuring authority may request the candidate or bidder concerned to present, complete, clarify or specify the information or documents concerned within an appropriate time limit, provided that such requests are in full compliance with the principles of equal treatment and transparency and, if it
A change in the composition of staff made available for the performance of the contract, which is the direct consequence of measures to resolve conflicts of interest or situations of prior participation, is considered not to result in an amendment of an essential element of the offer, provided that the principles of equal treatment and transparency are fully respected.
§ 4. For markets with an estimated amount below the thresholds for European advertising, the King may authorize the use of a system of qualification of economic operators or a list of selected candidates, according to the conditions to be determined by him.
Mandatory exclusion criteria
Art. 67. § 1^er. Except in the case where the candidate or bidder demonstrates, in accordance with section 70, that they have taken sufficient measures to demonstrate their reliability, the procuring authority excludes, at any stage of the proceedings, a candidate or bidder from participation in the procurement proceedings, when he or she has established or is informed in any manner other than that candidate or bidder has been the subject of a conviction made by a court order
1st participation in a criminal organization;
2° corruption;
3° fraud;
4° terrorist offences, offences related to terrorist activities or incitement to commit such an offence, complicity or attempted offence;
5° money laundering or financing of terrorism;
6° child labour and other forms of human trafficking.
7th occupation of third country nationals in illegal residence.
The King may specify the offences referred to in paragraph 1^er more detailed.
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 70, for the candidate or bidder to invoke corrective measures as appropriate.
Derogation from paragraph 1^er, the procuring authority may, on an exceptional basis and for compelling reasons of general interest, authorize an exemption from compulsory exclusion.
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 designated 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 supervisory body of that candidate or
By derogation from paragraph 5, however, the procuring authorities are not obliged, for markets whose estimated amount is less than the thresholds for European advertising, to verify the absence of grounds for exclusion referred to in this article in the head of the persons referred to in the above paragraph.
§ 2. Exclusions referred to in paragraph 1^erParagraph 1^er, 1° to 6°, participation in public markets only applies for a period of five years from the date of judgment.
Exclusion referred to in paragraph 1^erParagraph 1^er7°, participation in public procurement, applies only for a period of five years from the end of the offence.
Notwithstanding the case referred to in paragraph 1^er, paragraph 4, economic operators may not, where they are in a mandatory exclusion situation on the day after the final date of the introduction of requests for participation or the delivery of offers, participate in public procurement unless they attest that they have taken sufficient corrective measures in accordance with section 70 to demonstrate their reliability despite the existence of an applicable exclusion motive.
Reason for exclusion of tax and social debts
Art. 68. § 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 participation in a proceeding, candidate or bidder that does not meet its obligations with respect to the payment of taxes or social security contributions or taxes except:
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.
However, the procuring authority gives an opportunity to any economic operator to settle with these social and tax obligations in the course of the procurement process, after having first found that the candidate or bidder did not meet the requirements. From this point of view, the procuring authority leaves the economic operator a five working days to provide proof of its regularization. The use of this regularization is only possible at one recovery. This period begins on the day following the notification. For the calculation of this period, Council Regulation No. 1182/71 of 3 June 1971, establishing the rules applicable to deadlines, dates and terms, is not applicable.
§ 2. The King determines the tax and social debts to be considered and the additional terms and conditions in this regard.
§ 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, in open proceedings, before the deadline for the introduction of tenders.
Reasons for optional exclusion
Art. 69. Unless the candidate or bidder demonstrates, in accordance with section 70, that they have taken sufficient measures to demonstrate their reliability, the procuring authority may exclude, at some stage in the procurement proceedings, participation in a proceeding, 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 Article 7;
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 subject to a procedure for liquidation or reorganization of the court, or in 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 Article 5, paragraph 2;
5° where a conflict of interest within the meaning of Article 6 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 52 by other less intrusive measures;
7° where significant or persistent failures of the candidate or bidder were found during the performance of an essential obligation that was incumbent upon him in the context of an earlier public procurement contract, an earlier contract with a buyer or a prior concession, where such failures resulted in ex officio measures, damages or similar penalties;
8° the candidate or bidder has been seriously 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 criteria, has hidden this information or is not in a position to submit the supporting documents required under section 73 or section 74, or
9° the candidate or bidder has undertaken to improperly influence the decision-making process of the procuring power or to obtain confidential information that may give it an undue advantage in the procurement process, or has provided by negligence misleading information that may have a determinant influence on exclusion, selection or attribution decisions.
Exclusions in public procurement referred to in paragraph 1^er applies only for a period of three years from the date of the event concerned or in the event of a continuing offence, from the end of the offence.
Unless otherwise provided in 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 of persons who hold a power of representation, decision or control within the applicant or bidder.
Corrective measures
Art. 70. Any candidate or bidder in any of the situations referred to in sections 67 or 69 may provide evidence to attest that the measures it has taken are sufficient to demonstrate its reliability despite the existence of a relevant reason for exclusion. If such evidence is deemed sufficient by the procuring authority, the candidate or the bidder concerned is not excluded from the procurement procedure.
To this end, the applicant or the 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 with respect to personnel to prevent a new criminal offence or 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. It is in all cases a decision of the procuring power that must be motivated both materially and formally. When the measures are found to be insufficient, the reasons for the decision concerned are forwarded to the economic operator.
An economic operator who has been excluded by a judicial decision having the force of anything judged of participation in procurement or concession assignment proceedings is not allowed to make use of the possibility provided for in this article during the period of exclusion set by that decision in the Member States where the judgment produces its effects.
Selection criteria
Art. 71. The selection criteria or criteria may relate to:
1° to the ability to exercise professional activity; and/or
2° to economic and financial capacity; and/or
3° to technical and professional capacities.
The procuring authority may not impose any criteria other than those referred to as conditions of participation to candidates and bidders. They limit these conditions to those that are specific to ensuring that a candidate or bidder has the legal and financial capacity as well as the technical and professional skills required to perform the contract to be awarded. All conditions are related and proportionate to the subject matter of the market.
The King specifies the terms and conditions relating to the fixation of these conditions.
Substitution of a natural person by a legal person during the proceedings
Art. 72. The King may settle the consequences of an offer introduced by a natural person in the event that a legal person substitutes for the offer during the procurement proceedings. It can impose on these persons a joint responsibility.
Single European Market Document, Statement on Implicit Honour and Evidence
Art. 73. § 1^er. When filing applications for participation or tenders, as the case may be, candidates produce the Single European Market Document, which consists of a statement on the actual honour and which is accepted by the procuring authority as a priori evidence in place of documents or certificates issued by public authorities or third parties to confirm that the candidate or bidder concerned meets all the following conditions:
1° that it is not in any of the situations referred to in sections 67 to 69, which must or may result in the exclusion of candidates or bidders;
2° that it meets the applicable selection criteria established in accordance with section 71;
3° that, where applicable, it complies with the objective rules and criteria for reducing the number of candidates that have been established in accordance with Article 79.
When the economic operator uses the capabilities of other entities under Article 78, the Single European Market Document also includes the information referred to in paragraph 1^erthis paragraph with regard to these entities.
The Single European Market Document consists of an official statement by which the economic operator states that the reason for exclusion concerned does not apply and/or that the selection criterion is met and provides the relevant information required by the procuring authority. The Single European Market Document also designates the competent public authority or third party to prepare supporting documents and contains an official statement indicating that the economic operator will be able, upon request and without delay, to provide such supporting documents.
Where the procuring authority can directly obtain the supporting document by accessing a database under paragraph 4, the Single European Market Document also contains the information required for this purpose, such as the Internet address of the database, any identification data and, where applicable, the declaration of consent required.
Economic operators may reuse a Single European Market Document that has already been used in a previous procedure, provided they confirm that the information contained therein is still valid.
§ 2. The Single European Market Document is based on the model to be fixed by the European Commission and is provided only in electronic form.
§ 3. The procuring authority may request candidates and bidders, at any time of the proceedings, to provide all or part of the supporting documents, if necessary to ensure the proper conduct of the proceedings.
Before the award of the contract, the procuring authority requires the bidder to whom it has decided to award the contract, except for contracts based on framework agreements when these contracts are passed in accordance with Article 43, § 4 or § 5, 1°, that it presents the updated supporting documents referred to in Article 75. The procuring authority may invite economic operators to complete or clarify the certificates received.
§ 4. Notwithstanding paragraph 3, economic operators are not required to submit supporting documents or other supporting documents when and to the extent that the procuring authority has the opportunity to obtain directly the relevant certificates or information by accessing a national database in a Member State that is available free of charge, such as a national register of public procurement, a virtual business record, an electronic document storage system or a pre-qualification system.
Notwithstanding paragraph 3, economic operators are not required to submit supporting documents when the procuring authority already has these documents in its possession following a previously concluded contract or framework agreement, provided that the economic operators concerned identify in their application for participation or offer them the procedure in which the said documents have already been provided and provided that the information and documents mentioned are still in compliance with the requirements.
Delegation to the King on the establishment of alternative rules on provisional evidence
Art. 74. For contracts passed by negotiated procedure without prior publication to be determined by him, the King may, as provisional evidence in relation to documents or certificates issued by public authorities or third parties confirming that the candidate or bidder concerned meets all the conditions mentioned in article 73, § 1^erParagraph 1^erset an alternative by-law to which He determines the conditions of application and the formalities to be followed.
The same applies to the markets to be determined by Him whose estimated amount is below the threshold for European advertising.
Delegation to the King on evidence of lack of grounds for exclusion and evidence of the response to selection criteria
Art. 75. The King determines the certificates, declarations, references and other evidence, which the procuring authority may require production to prove that there are no grounds for exclusion and that the selection criteria are met.
Online Certificate Database (e-Certis)
Art. 76. The procuring authorities use e-Certis and they mainly require the types of certificates or the forms of supporting documents that are provided by e-Certis.
Quality Assurance Standards and Environmental Management Standards
Art. 77. § 1^er. When the procuring authority requests the production of certificates prepared by independent organizations, certifying that the economic operator complies with certain quality assurance standards, including accessibility for persons with disabilities, it refers to quality assurance systems based on the European standards series on the subject and certified by accredited bodies. It recognizes the equivalent certificates of bodies established in other Member States. It also accepts other evidence of equivalent quality assurance measures when the economic operator concerned did not have the opportunity to obtain these certificates within the time frame set for reasons not attributable to it, provided that the said economic operator determines that the proposed quality assurance measures are in compliance with the required quality assurance standards.
§ 2. When the procuring authority requests the production of certificates prepared by independent bodies, certifying that the economic operator complies with certain environmental management systems or standards, they refer to the environmental management and auditing system (EMAS) of the European Union or to other environmental management systems recognized in accordance with Article 45 of Regulation (EC) No 1221/2009 of the European Parliament and of the Council of 25 November 2009 concerning the participation It recognizes the equivalent certificates of bodies established in other Member States.
When an economic operator clearly did not have access to such certificates or the opportunity to obtain them within the time limits set for reasons not attributable to it, the procuring authority also accepts other evidence of environmental management measures, provided that the economic operator determines that these measures are equivalent to those required under the applicable system or environmental management standard.
Use of third-party capacity
Art. 78. An economic operator may, where appropriate, and for a specified market, use the economic, financial and technical and professional capacity of other entities, as referred to in Article 71, paragraph 1^erTwo and three.
When an economic operator uses the capabilities of other entities with respect to criteria relating to economic and financial capacity, the procuring authority may require that the economic operator and those entities in question be jointly responsible for the performance of the market, provided that the possibility of requiring joint responsibility has not been excluded in the market documents. To be effective, however, this joint responsibility must be accepted in writing by the entity whose capacity is invoked. Where the written acceptance referred to above is not provided, the candidate or bidder may not use the capacity of that entity. This paragraph does not prejudice the solidarity liability provided for under other laws, including social, tax or salary debts.
For public works markets, service markets and installation and installation work in a supply market, the procuring authority may require that certain essential tasks be performed directly by the bidder himself or, if the offer is submitted by a group of economic operators referred to in Article 8, § 2, by a participant of that group.
The King may establish additional material and procedural arrangements.
Limitation of the number of candidates
Art. 79. § 1^er. In limited procedures, competitive procedures with negotiation, competitive dialogues and innovation partnerships, the procuring authority may limit the number of candidates meeting the selection criteria that it will invite to bid or dialogue, provided that the minimum number of qualified candidates, as set out in paragraph 2, is available.
§ 2. The procuring authority indicates in the notice of contract the objective and non-discriminatory criteria or rules that it intends to apply, the minimum number of candidates it plans to invite and, where appropriate, the maximum number of candidates.
In the limited procedure, the minimum number of candidates is five. In the competitive process with negotiation, competitive dialogue and innovation partnership, the minimum number of candidates is three. In any event, the number of invited candidates must be sufficient to ensure real competition.
The procuring authority invites a number of candidates at least equal to the minimum number. However, where the number of candidates meeting the selection criteria and the minimum capacity levels is less than the minimum number established by the procuring authority, the procuring authority may continue the procedure by inviting candidates with the required capacity. Under this same procedure, the procuring authority does not include economic operators who have not requested to participate or candidates who do not have the required capacity.
§ 3. For markets below the thresholds for European advertising, the obligation referred to in paragraph 2, paragraph 1^er, specify the minimum number and, if applicable, the maximum number of candidates is not applicable.
Limitation of the number of offers and solutions
Art. 80. When the procuring authority relies on the power to limit the number of offers to be negotiated, as provided for in Article 38, § 7, and Article 41, § 5, or solutions to be discussed, as provided for in Article 39, § 4, it makes this reduction by applying the criteria of attribution specified in the market documents. In the final phase, this number allows for real competition, provided that there is a sufficient number of offers, solutions or candidates that meet the requirements.
Section 4. - Market allocation
Market allocation criteria
Art. 81. § 1^er. The procuring power is based, in order to attribute public markets, on the most economically advantageous offer.
§ 2. The most economically advantageous offer from the point of view of the procuring power is, at the choice, determined:
1° on the basis of the price;
2° on the basis of cost, based on a cost-effective approach, such as the cost of the life cycle, in accordance with section 82;
3° based on the best value/price ratio that is valued on the basis of price or cost as well as criteria including qualitative, environmental and/or social aspects related to the subject matter of the public market concerned. These criteria include:
(a) quality, including technical value, aesthetic and functional characteristics, accessibility, design for all users, social, environmental and innovative characteristics, trade and conditions in which it is practised;
(b) the organization, qualifications and experience of personnel assigned to the performance of the contract, where the quality of the assigned staff may have a significant influence on the level of performance of the contract;
(c) after-sales service, technical assistance and delivery conditions, such as delivery date, delivery mode and delivery or delivery time.
The cost factor may also take the form of a fixed price or cost on the basis of which economic operators will compete on the only quality criteria.
§ 3. The attribution criteria are deemed to be related to the purpose of the public market when they relate to the work, supplies or services to be provided under the market in any respect and at any stage of their life cycle, including the factors involved in:
1° the specific process of production, supply or marketing of such works, products or services, or
2° a specific process related to another stage of their life cycle, even when these factors are not part of their material content.
The attribution criteria do not give an unlimited freedom of choice to the procuring power. They guarantee the possibility of real competition and are accompanied by clarifications that allow for concrete verification of the information provided by the bidders to assess the extent to which the bids meet the award criteria. In case of doubt, the procuring authority effectively verifies the accuracy of the information and evidence provided by the bidders.
These criteria must be indicated in the market notice or in another market document.
§ 4. For public markets equal to or greater than the amounts set for European advertising, the procuring authority specifies, in market documents, the relative weighting it assigns to each of the criteria chosen to determine the most economically advantageous offer, except when it is determined on the sole basis of the price.
This weighting may be expressed by providing a range of which the difference between the minimum and the maximum is appropriate.
When weighting is not possible for objective reasons, the procuring power refers to the criteria in descending order of importance.
For public markets below the above-mentioned amounts, the procuring authority specifies either the relative weighting it assigns to each of the criteria chosen to determine the most economically advantageous offer, or their decreasing order of importance. If not, the attribution criteria have the same value.
§ 5. The King may establish additional terms and conditions for attribution criteria.
Life cycle costs
Art. 82. § 1^er. The life cycle costs cover, to the extent that they are relevant, all or part of the following costs of the life cycle of a product, service or work:
1° the costs incurred by the procuring power or other users, such as:
(a) the costs associated with the acquisition;
(b) costs associated with use, such as energy consumption and other resources;
(c) maintenance costs;
(d) end-of-life costs such as collection and recycling costs;
2° the costs charged to the environmental externalities related to the product, service or work during its life cycle, provided that their monetary value can be determined and verified; these costs may include the cost of greenhouse gas emissions and other pollutant emissions as well as other climate change mitigation costs.
§ 2. When the procuring authority assesses costs on a life-cycle basis, it indicates in market documents the data to be provided by bidders and the method used by the procuring authority to determine the cost of the life-cycle on the basis of these data.
The method used to assess costs charged to environmental externalities meets all of the following conditions:
1° it is based on objective and non-discriminatory criteria. In particular, where it has not been provided for repeated or continuous application, it does not unduly favour or defraud certain economic operators;
2° it is accessible to all interested parties;
3° the required data may be provided with a reasonable effort made by normally diligent economic operators, including third-country operators who are parties to the World Trade Organization in Public Procurement, below referred to as "AMP", or other international agreements by which the European Union is bound.
When a common method of calculating life cycle costs has become mandatory by a legislative act of the European Union, it is applied for the assessment of life cycle costs.
Regularity of offers
Art. 83. The procuring authority checks the regularity of offers. The King may set the additional terms for this purpose.
Audit of prices or costs
Art. 84. The procuring authority shall verify the prices or costs of the tenders introduced in accordance with the terms and conditions established by the King. The King may provide for exceptions to the verification of prices or costs for the markets fixed by him.
At its request, bidders provide all indications for this verification during the procurement process.
Non-market allocation
Art. 85. The completion of a procedure does not imply the obligation to award or conclude the contract. The procuring power may either renounce the award or conclusion of the contract, or resume the procedure, if necessary in another way.
CHAPTER 5. - Market performance
Delegation to the King concerning the setting of general rules of execution
Art. 86. The King sets out the general rules of execution for public procurement, including the rules relating to subcontracting and control, for the markets to be determined by him, the absence of grounds for exclusion in the subcontractor's chief, and the provisions relating to the end of the market.
In the matter of subcontracting, the King may, for the markets to be determined by Him, limit the chain of subcontractors, in accordance with the rules to be determined by Him.
The King may also in accordance with the rules to be determined by Him:
1° extend the verification of the absence of grounds for exclusion in the head of subcontractors referred to in paragraph 1^er the procurement procedure;
2° for the labor markets to be determined by Him, to extend the aggregation as a contractor in accordance with the Act of 20 March 1991 organizing the aggregation of construction contractors and its enforcement orders to all subcontractors of the chain.
Special conditions for market execution
Art. 87. The procuring authority may provide for specific conditions regarding the execution of a contract as long as they are related to the subject matter of the market within the meaning of Article 81, § 3, and specified in the notice of contract or in the market documents. These conditions may take into account considerations relating to economics, innovation, the environment, the social sphere or employment.
CHAPTER 6. - Social services and other specific services
Social services and other specific services - Scope of application
Art. 88. This chapter applies to public contracts with the purpose of social services and other specific services listed in Appendix III, except where these contracts are subject to the small amount of Chapter 7.
Principles on social services and other specific services
Art. 89. § 1^er. Depending on the nature and characteristics of the need to be met, the procuring authority may, for the procurement of the services markets referred to in section 88:
1° to use direct negotiated procedure with prior publication;
2° use the negotiated procedure without prior publication where the estimated amount of the market is less than 750,000 euros or, where the estimated amount of the market is equal to or greater than that threshold in the cases of application referred to in Article 42, § 1^er, 1°, b, c and d, 2°, 3°, 4° and 5° ;
3° Refer expressly to one of the procurement procedures or procurement techniques set out in Chapters 2 and 3, except for the direct negotiated procedure with prior publication and the negotiated procedure without prior publication, without the conditions for the application of these procedures necessarily being met;
4° use a sui generis procedure with prior publication of which it sets out the terms.
Procedures referred to in paragraph 1^er must, in any case, respect the principles of transparency, proportionality and equal treatment of economic operators.
The procuring authority specifies either the relative weighting it assigns to each of the criteria chosen to determine the most economically advantageous offer, or their descending order of importance. If not, the attribution criteria have the same value.
§ 2. If the procuring authority applies in accordance with paragraph 1^erParagraph 1^er, 1°, the procedure negotiated directly with prior publication, it is at least obliged to respect the provisions of title 1^erChapter 1^er Articles 41, §§ 2 to 7, 51, 52, 59, 66, §§ 1^er and 3, 67-71, 73, 74, 78, 80-82, 85-87 of title 2, title 4, and chapter 1^er Title 5.
The other provisions of the Act are not applicable unless otherwise provided in market documents.
The procuring authority may decide to review the offers before verifying on the one hand the absence of grounds for exclusion and to control on the other hand the compliance with the selection criteria it freely sets. When making use of this option, it ensures that the verification of the absence of grounds for exclusion and the application of the selection criteria is conducted in an impartial and transparent manner, so that no contract is awarded to a bidder who should have been excluded or who does not meet the selection criteria established by the procuring authority.
§ 3. If the procuring authority applies in accordance with paragraph 1^erParagraph 1^er2°, the procedure negotiated without prior publication, it is at least obliged to comply with the provisions of Title 1^erChapter 1^er Articles 42, § 2, 51, 52, 59, 66, §§ 1^er title 2, title 4 and chapter 1^er Title 5.
The procuring authority may decide to review the offers before verifying the absence of grounds for exclusion. When making use of this option, it ensures that an audit of the absence of grounds for exclusion is conducted in an impartial and transparent manner, so that no contract is awarded to a bidder that should have been excluded.
The other provisions of the Act are not applicable unless otherwise provided in market documents.
§ 4. If the procuring authority opts for the case referred to in paragraph 1^erParagraph 1^er, 3°, it is required to apply the procurement procedure to which it refers in its entirety and is subject to the provisions of this Act.
§ 5. If the procuring authority opts for the case referred to in paragraph 1^erParagraph 1^er4°, it is obliged to respect at least the provisions of title 1, of chapter 1^er Title 2, chapter 1^er and articles 67, 68 and 70.
The procuring authority may decide to review the offers before verifying the absence of grounds for exclusion. When making use of this option, it ensures that an audit of the absence of grounds for exclusion is conducted in an impartial and transparent manner, so that no contract is awarded to a bidder that should have been excluded.
It is also required to apply the terms and conditions that it has established itself. For fixing these modalities, it may:
1st draw on the procurement procedures and procurement techniques provided for in this title; or
2° refer to certain items of the procurement procedures and procurement techniques provided for in this title and, where applicable, provide for exemptions.
Publication
Art. 90. § 1^er. Except where the negotiated procedure is used without prior publication in accordance with Article 89, § 1^erParagraph 1^er, 2°, the procuring authority uses a market notice or, by derogation from Article 60, paragraph 2, a notice of pre-information, as a means of appeal to competition and indicates the option of Article 89, § 1^er,Paragraph 1^er, 1°, 3° or 4°, to which it is resorted.
In the cases referred to in Article 89, § 1^erParagraph 1^er, 1° or 3°, the notice of contract or pre-information refers to the name of the procedure in question.
In the case referred to in Article 89, § 1^erParagraph 1^er, 4°, when the procuring authority is inspired by the procurement procedures and procurement techniques provided for in this title, it explains, in a succinct manner, the concrete terms and conditions of the procedure in the notice of contract or notice of pre-information. It explains these modalities more accurately in market documents.
In the case referred to in Article 89, § 1^erParagraph 1^er, 4°, where the procuring authority refers in part to the procurement procedures and procurement techniques provided for in this Act, the procuring authority shall specify the applicable provisions and, where applicable, the exemptions, in the notice of procurement or notice of pre-information.
§ 2. By derogation from section 60, paragraph 3, the notice of pre-information is published on an ongoing basis and may cover a period of more than twelve months. This notice may be used in restricted or competitive proceedings with negotiation.
§ 3. The procuring authority that has awarded a public procurement contract for the services referred to in section 88, discloses the results of the procurement procedure through a notice of contract award. Market award notices can be grouped on a quarterly basis. In this case, they send these notices grouped no later than thirty days after the end of each quarter.
This paragraph is applied only when the estimated amount of the market is equal to or greater than 750,000 euros.
§ 4. The notices referred to in this article shall be published in accordance with the rules established by the King.
Markets reserved for certain services
Art. 91. The Federal State, the Communities and the Regions, and the procuring powers they designate, may reserve to some organizations the right to participate in their respective procurement procedures relating exclusively to the health, social or cultural services referred to in article 88000-5000, 7121000-0, 75122000-7, 7512000-4, 79622000-0, 79624000-4, 79625000-1
An organization referred to in paragraph 1^er meets all the following conditions:
1° is intended to carry out a public service mission related to the provision of the services referred to in paragraph 1^er;
2° its profit is reinvested in order to reach the objective of the organization. In the event of distribution or redistribution of profits, it should be based on participatory principles;
3° the management or ownership structures of the organization that executes the market are based on employee ownership or participatory principles or require the active participation of employees, users or stakeholders;
4° the organization has not been awarded a contract by the relevant procuring authority for the services covered by this article in the previous three years.
The maximum market time is not more than three years.
The notice of contract or pre-information refers to this section.
CHAPTER 7. - Low public markets
Provisions applicable to low-value public procurement
Art. 92. The markets with an estimated value of less than 30,000 euros are subject only to:
1° to the provisions of title 1^erexcept articles 12 and 14;
2° to the application field provisions ratione personae and ratione materiae referred to in Chapter 1^er Title 2.
These contracts may be concluded by accepted invoice.
PART 3. - Public markets in special sectors
CHAPTER I^er. - Scope of application
Section 1^re. - Application field ratione personae
Scope of application - General
Art. 93. This title shall be subject to the application of this title, where the procuring entities referred to in section 2, 4° are engaged in any of the activities referred to in sections 96 to 102.
A non-limitative list of public enterprises is established by the King.
Scope of application according to the value of the market
Art. 94. This title applies to public contracts defined in Article 2, 17° to 21°, as well as to competitions defined in Article 2, 31°, and to framework agreements defined in Article 2, 35° whose amounts estimated, unless otherwise provided, are:
1° lower, equal or above thresholds for European advertising for:
(a) the procuring powers defined in Article 2, 1°, except in the case referred to in 2°, c;
(b) public enterprises defined in section 2, 2°, for markets that relate to their public service tasks within the meaning of a law, decree or order;
2° equal or above the thresholds for European advertising for:
(a) public enterprises defined in section 2, 2°, for markets that do not relate to their public service tasks within the meaning of a law, decree or order;
(b) persons with special or exclusive rights defined in Article 2, 3°;
(c) the procuring powers referred to in Article 2, 1°, for markets that relate to electricity generation.
The King is responsible for adjusting certain amounts according to the revisions provided in the European directives determining the value of the thresholds indicated in his directives.
This title does not cover non-economic services of general interest.
For the purposes of this chapter, the concept of public procurement also includes framework agreements and competitions.
Section 2. - Scope of application for activities
Common Field Provisions Activities
Art. 95. For the purposes of sections 96, 97 and 98, the term "food" includes production, wholesale sale and retail sale.
However, the production of gas by extraction falls within the scope of section 102.
Gas and heat
Art. 96. § 1^er. For gas and heat, this title applies to the following activities:
1° the provision or operation of fixed networks to provide a service to the public in the field of the production, transport or distribution of gas or heat;
2° the supply of these gas or heat networks.
§ 2. The supply, by a procuring entity other than a procuring power, gas or heat stationary networks that provide service to the public is not considered an activity referred to in paragraph 1^er where all of the following conditions are met:
1° the production of gas or heat by the said procuring entity is the unavoidable result of the exercise of an activity other than those referred to in paragraph 1^er or articles 97 to 99;
2° the supply of the public network is only intended to economically exploit this production and does not represent more than 20 percent of the turnover of the procuring entity calculated on the basis of the average of the last three years, including the current year.
Electricity
Art. 97. § 1^er. For electricity, this title applies to the following activities:
1° the provision or operation of fixed networks to provide a service to the public in the field of the production, transport or distribution of electricity;
2° the power supply of these power grids.
§ 2. The power, by a procuring entity other than the procuring authorities, of the networks that provide service to the public is not considered an activity referred to in paragraph 1^er where all of the following conditions are met:
1° Electricity production by the said procuring entity takes place because its consumption is necessary for the exercise of an activity other than those referred to in paragraph 1^er or articles 96, 98 and 99;
2° the supply of the public network depends only on the consumption of the said procuring entity and has not exceeded 30 percent of the total energy production of that procuring entity calculated on the average of the last three years, including the current year.
Water
Art. 98. § 1^er. For water, this title applies to the following activities:
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.
§ 2. This title also applies to contracts or contests that have been passed or organized by procuring entities engaged in an activity referred to in subsection 1^er and related to one of the following activities:
1° of hydraulic engineering, irrigation or drainage projects, provided that the volume of water intended for drinking water is more than 20 percent of the total volume of water provided by these projects or irrigation or drainage facilities;
2° the evacuation or treatment of waste water.
§ 3. The supply, by a procuring entity other than a procuring authority, of drinking water of fixed networks that provide service to the public is not considered an activity referred to in paragraph 1^er where all of the following conditions are met:
1° the production of drinking water by the said procuring entity takes place because its consumption is necessary for the exercise of an activity other than those referred to in sections 96 to 99;
2° the supply of the public network depends only on the consumption of the said procuring entity and has not exceeded 30 percent of the total production of drinking water of that procuring entity calculated on the average of the last three years, including the current year.
Transport services
Art. 99. This title applies to activities for the provision or operation of networks to provide a service to the public in the area of rail transport, automatic systems, tram, trolleybus, bus or cable.
For transport services, it is considered that a network exists when the service is provided under the operating conditions determined by a competent authority, such as the conditions for the routes to be followed, the available transport capacity or the frequency of the service.
Ports and airports
Art. 100. This title applies to activities related to the operation of a geographic area for the purpose of making an airport, marine or internal port or other terminals available to air, marine or inland waterway carriers.
Postal services
Art. 101. § 1^er. This title applies to activities related to the provision:
1° postal services;
2° other services other than postal services, provided that these services are provided by an entity also providing postal services within the meaning of paragraph 2, 2°, and that with respect to services under paragraph 2, 2°, no exemption was obtained under section 116.
§ 2. For the purposes of this article, the following means:
1° "posting", a consignment bearing an address in the final form in which it must be routed, regardless of its weight. In addition to correspondence, these include books, catalogues, newspapers, periodicals and postal parcels containing goods with or without commercial value, regardless of their weight;
2° "postal services", services, consisting 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 Article 144octies of the Act of 21 March 1991 on the reform of certain economic public enterprises;
3° "services other than postal services", services provided in the following areas:
(a) Postal services management services, including postal services prior to mailing and post-shipment services, including mailroom management services;
(b) services relating to postal shipments not included at 1°, such as mailing without address.
Oil and gas extraction and coal exploration and extraction and other solid fuels
Art. 102. This title applies to activities related to the operation of a geographic area for the purpose of:
1° to extract oil or gas;
2° to explore or extract coal or other solid fuels.
Section 3. - Mixed markets
Sub-section 1^re. - Mixed markets covering the same activity
Mixed markets covering the same activity for different types of markets under this heading
Art. 103. Contracts covering the same activity that have different types of markets all of this title are passed in accordance with the provisions applicable to the type of market that constitutes the principal object of the market in question.
With respect to mixed markets that cover both services and supplies or mixed markets that cover both social services and other specific services within the meaning of Chapter 6, and other services, the main object is determined based on the highest value of the respective estimated values of supplies or services.
A public market for the provision of products or the provision of services and, incidentally, installation and installation work is considered to be a public procurement of supplies or services.
Mixed markets covering the same activity for markets under this heading and markets under other legal regimes
Art. 104. § 1^er. This section applies to mixed markets covering the same activity that are both for the purposes of markets under this heading and for markets under other legal regimes.
§ 2. When the different parts of a given market are objectively inseparable, the applicable legal regime is determined on the basis of the principal object of that market.
§ 3. When the different parts of a given market are objectively separable, the procuring entity may decide to place separate markets for the different parts of the market or, on the other hand, to enter a single market.
When the procuring entity decides to make separate contracts for the different parties, the decision on the legal regime applicable to each of these separate markets is adopted on the basis of the characteristics of the specific party in question.
Where the procuring entity decides to enter a single market, this title applies, unless otherwise provided in section 106, to the resulting mixed market, regardless of the value of the parties normally subject to a different legal regime and regardless of the legal regime of which the parties would normally have noted.
In the case of a mixed market containing elements of work contracts, supplies or services under this title and elements of concessions, the mixed market has passed in accordance with this title.
§ 4. However, where a portion of a particular market falls under headings 2 or 3 or title 3/1 of the Defence and Security Act, section 106 applies.
Sub-section 2. - Mixed markets covering several activities
Mixed markets - Other activities
Art. 105. § 1^er. In the case of contracts to cover several activities, procuring entities may decide to place separate markets for each of the different activities or to place a single market.
The decision to enter a single market or to enter several separate markets may, however, not be taken with the aim of subtracting the contract(s) from the scope of this Act or, where applicable, from the Concessions Act.
§ 2. When procuring entities decide to make separate contracts, the decision on the rules applicable to each of these separate markets is adopted on the basis of the characteristics of the various activities involved.
§ 3. Where procuring entities decide to enter a single market, the rules set out in this paragraph apply, notwithstanding section 104. However, where one of the activities concerned falls under headings 2, 3 or 3/1 of the Defence and Security Act, section 107 applies.
A market to cover several activities follows the rules applicable to the activity to which it is primarily intended.
In the case of a market for which it is objectively impossible to establish to which activity the market is primarily intended, the applicable rules are determined as follows:
1° the contract is awarded in accordance with title 2, if one of the activities to which the market is intended falls within this title and the other in title 2;
2° the contract is awarded in accordance with this title, if any of the activities to which the market is intended fall within this title and the other activity of the concessions law;
3° the contract is awarded in accordance with this title, if any of the activities to which the market is intended fall within this title and if the other activity does not fall within this title, title 2, or the Concessions Act.
Subsection 3. - Mixed markets with defence or security aspects
Mixed markets covering the same activity and involving defence or security aspects
Art. 106. § 1^er. This section applies to joint markets covering the same activity and which are both for the purposes of the contracts under this heading and for the markets under headings 2 or 3 or 3 or 3/1 of the Defence and Security Act.
§ 2. Where the different parts of a given market are objectively inseparable, the market may be passed in accordance with Title 3/1 of the Defence and Security Act when it contains elements relevant to the application of Article 346 of the Treaty on the Functioning of the European Union.
Where in the same case, the market does not contain any elements relevant to the application of Article 346 of the Treaty on the Functioning of the European Union, it may be passed in accordance with Titles 2 and 3 of the Defence and Security Act.
§ 3. When the different parts of a given market are objectively separable, the procuring entity may decide to place separate markets for the different parts of the market or to enter a single market.
When the procuring entity decides to make separate contracts for the different parties, the decision on the legal regime applicable to each of these separate markets is adopted on the basis of the characteristics of the specific party in question.
When the procuring entity chooses to enter a single market, the following criteria apply to determine the applicable legal regime:
1° where a particular part of a market falls under Title 3/1 of the Defence and Security Act, the market may be passed in accordance with the above title, provided that the procurement of a single market is justified by objective reasons;
2° where a particular part of a market falls within 2 or 3 of the Defence and Security Act, the market may be passed in accordance with the above-mentioned securities, provided that the procurement of a single market is justified by objective reasons. This provision is without prejudice to the thresholds and exclusions provided for in the Act.
However, the decision to enter a single market cannot be taken to exclude markets from the application of this Act or securities 2 or 3 of the Defence and Security Act.
When, for the purposes of the third paragraph, both the conditions of 1° and 2° are met, the 1° applies.
Mixed markets covering several activities and involving defence or security aspects
Art. 107. § 1^er. In the case of contracts with defence or security aspects to cover several activities, procuring entities may decide to award separate contracts for each of the various activities or to move a single market.
The choice between the procurement of a single market and the procurement of several separate markets cannot be made with the objective of excluding the scope or markets of this Act or securities 2 or 3 of the Defence and Security Act.
§ 2. When the procuring entities decide to make separate contracts for the different parties, the decision on the legal regime applicable to each of these separate markets is adopted on the basis of the characteristics of the specific activity concerned.
§ 3. When procuring entities decide to enter a single market and markets cover an activity under this title and another activity under this heading:
1st of titles 2 or 3 of the Defence and Security Act; or
2° title 3/1 of the Defence and Security Act,
the contract may be passed in accordance with Title 2 or 3 of the Defence and Security Act in the cases referred to in the first paragraph, 1°, and it may be passed without applying this title in the cases referred to in 2°. This paragraph shall be without prejudice to the thresholds and exclusions provided by the Defence and Security Act.
The contracts referred to in the first paragraph, 1°, which in addition are for purchases or other items under title 3/1 of the Defence and Security Act, may be passed without applying this title.
However, the first and second subparagraphs apply only on the condition that the procurement of a single market is justified by objective reasons and that the decision to enter a single market is not taken to exempt markets from the application of this Act.
Section 5. - Exclusions
Sub-section 1^re. - Exclusions applicable to all procuring entities and special exclusions for water and energy sectors
Exclusions applicable to all procuring entities
Art. 108. The following exclusions apply to the public markets covered by this title:
1° Article 27 concerning contracts under international rules;
2° Article 28 concerning certain exclusions for service markets;
3° Article 29 concerning contracts of services passed on the basis of an exclusive right;
4° Article 32 concerning research and development services.
Nevertheless, Article 28, § 1^erParagraph 1^er, 10°, relating to political campaigns is not applicable. With respect to Article 28, § 1^erParagraph 1^er, 2°, exclusion applies only to markets for broadcast times or the provision of programs that are attributed to audiovisual or radio media service providers.
Contracts for resale or third-party lease
Art. 109. This title does not apply to contracts for resale or lease to third parties, where the procuring entity has no special or exclusive right to sell or lease the subject matter of these contracts and where other entities may freely sell or lease it under the same conditions as the procuring entity.
The procuring entities shall, at their request, communicate to the European Commission all categories of products and activities they consider excluded under paragraph 1^er.
This section does not apply to public procurement contracts passed by a procurement centre for centralized procurement activities.
Public markets and competitions past or organized for purposes other than the continuation of an activity in the special sectors or for the continuation of such activity in a third country
Art. 110. This title does not apply to public procurements that procuring entities spend for purposes other than the continuation of their activities referred to in sections 96 to 102 or for the continuation of these activities in a third country, under conditions not implicating the physical operation of a network or geographic area within the Community, or for competitions organized for such purposes.
The procuring entities shall, at their request, communicate to the Commission any activity they consider to be excluded under paragraph 1^er.
Markets passed by certain procuring entities for the purchase of water and for the supply of energy or fuel for the production of energy
Art. 111. This title does not apply:
1° to markets for the purchase of water, provided that they are passed by procuring entities carrying one or two activities relating to drinking water referred to in Article 98, § 1^er;
2° to markets passed by procuring entities themselves present in the energy sector because they carry out one of the activities referred to in Article 96, § 1^erin Article 97, § 1^eror section 102 for the supply:
(a) energy;
(b) fuels for energy production.
Sub-section 2. - Exclusion in the areas of defence and security
Defence and security, including contracts relating to defence and security aspects in accordance with international rules
Art. 112. Sections 33 and 34 are applicable to public procurement under this heading.
Subsection 3. - Cooperation, related companies and joint ventures
"in house" control and non-institutionalized horizontal cooperation
Art. 113. Sections 30 and 31 shall apply to public contracts covered by this title.
Markets awarded to a related business
Art. 114. § 1^er. 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 requirements of Directive 2013/34/EU of the European Parliament and of the Council of 26 June 2013 on the annual financial statements, consolidated financial statements and related reports of certain forms of business, as set out in Directive 2013/34/EU.
With respect to entities that do not fall under 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, "dominant influence" is presumed in the cases referred to in Article 2, 2°.
§ 2. Notwithstanding sections 30 and 31, and to the extent that the conditions set out in subsection 3 are met, this title does not apply to contracts:
1° passed by a procuring entity to a related company; or
2° spent by a joint venture, exclusively made up of several procuring entities for the purposes of the continuation of the activities described in sections 96 to 102, with a business related to one of these procuring entities.
§ 3. Subsection 2 applies:
1° to service markets, provided that at least 80 per cent of the total average turnover that the related company has made over the past three years, taking into account all services provided by the said company, comes from the provision of services to the procuring entity or other companies to which it is related;
2° to supply markets, provided that at least 80 percent of the total average turnover that the related company has made over the past three years, taking into account all supplies made available by the said company, comes from the delivery of supplies to the procuring entity or to other companies to which it is related;
3° to work markets, provided that at least 80 percent of the total average turnover that the related company has realized, taking into account all the work provided by the said company over the past three years, results from the execution of work for the procuring entity or other companies to which it is related.
§ 4. When, as a result of the date of creation or start of business of the related company, the turnover is not available for the last three years, it is sufficient that this company shows that the realization of the turnover referred to in paragraph 3, 1°, 2° or 3°, is likely, in particular by business projections.
§ 5. Where the same services, supplies or works, or services, supplies or similar works are provided by more than one enterprise related to the procuring entity with which they form an economic grouping, the percentages are calculated taking into account the total turnover resulting, respectively, from the provision of services, the provision of supplies and the provision of work by these related companies.
Contracts awarded to a joint venture or a procuring entity that is part of a joint venture
Art. 115. Notwithstanding sections 30 and 31, and provided that the joint venture has been incorporated in order to continue the activity in question for a period of at least three years and that the joint venture instrument states that the procuring entities that make up the joint venture will be an integral part of the joint venture for at least the same period, this title does not apply to past contracts:
1° by a joint venture exclusively made up of several procuring entities for the purpose of pursuing activities within the meaning of sections 96 to 102 with one of these procuring entities; or
2° by a procuring entity to such a joint venture, of which it is part.
Sub-section 4. - Activities directly exposed to competition
Exclusion of activities directly exposed to competition Exemption application procedure
Art. 116. This title does not apply to public procurements that procuring entities are moving towards the continuation of the activities referred to in sections 96 to 102 if the activity is directly exposed to competition, in markets with limited access. However, this exclusion is subject to an exemption procedure by the competent national authority and a decision of the European Commission.
The King sets out the additional material and procedural terms of the application for exemption.
CHAPTER 2. - Passing procedures
Selection of the procedure
Art. 117. § 1^er. Public procurement is carried out according to one of the following procedures, provided that an appeal for competition has been published:
1° the open procedure;
2° the restricted procedure;
3° the procedure negotiated with prior competition;
4° competitive dialogue;
5° the partnership of innovation, according to the conditions set out in section 122;
6° the procedure negotiated directly with prior competition, according to the conditions set out in Article 123.
In cases and circumstances expressly referred to in Article 124, contracts may be negotiated by negotiated procedure without prior competition.
§ 2. The call to competition referred to in paragraph 1^er may be carried out by one of the following means:
1° an indicative periodic notice, in accordance with Article 139, when the market has passed through a restricted or negotiated procedure with prior competition;
2° an opinion on the existence of a qualification system, in accordance with Article 140, when the market has passed through a restricted or negotiated procedure with prior competition or through a competitive dialogue or partnership of innovation;
3° a notice relating to the establishment of a list of candidates selected in accordance with Article 141, where the market, which is estimated to be less than the European advertising thresholds, has passed through a restricted or negotiated procedure with prior competition;
4° a market notice in accordance with Article 142.
In the case referred to in point 1°, the economic operators who showed their interest following the publication of the indicative periodic notice are subsequently invited to confirm their interest in writing by means of an invitation to confirm the interest, in accordance with Article 146, § 1^erParagraph 2.
Open procedure
Art. 118. § 1^er. In an open procedure, any interested economic operator may submit an offer in response to a market notice.
The minimum deadline for receipt of bids is thirty-five days from the date of the notification of contract.
The offer includes information for the selection requested by the procuring entity.
§ 2. In the event that the procuring entity publishes an indicative periodic notice that is not used as a means of appeal to competition, the minimum deadline for receipt of tenders referred to in paragraph 1^er, second paragraph, may be reduced to fifteen days, provided that all of the following conditions are met:
1° the indicative periodic notice contained all the information fixed by the King, to the extent that it was available at the time of publication of the notice;
2° the indicative periodic notice was sent for publication from thirty-five days to twelve months before the date of the notice of contract.
§ 3. Where an emergency situation, duly justified by the procuring entity, renders the minimum period specified in paragraph 1^er, second paragraph, impossible to comply, it may set a time limit not less than fifteen days from the date of issue of the notice of contract when the estimated amount of the market is equal to or greater than the thresholds for European advertising and ten days, when the estimated amount of the market is less than that threshold.
§ 4. The procuring entity may reduce by five days the deadline for receipt of the tenders referred to in paragraph 1^er, second paragraph, if the offers are submitted electronically in accordance with the rules relating to electronic platforms taken by and under Article 14, § 1^erparagraphs 2 and §§ 5 to 7.
§ 5. The King may determine the additional procedural procedures applicable to the open proceedings.
Restricted procedure
Art. 119. § 1^er. In a limited procedure, any economic operator may submit an application for participation in response to a competitive appeal by providing information for the selection requested by the procuring entity.
For markets with an estimated amount equal to or greater than the thresholds set for European advertising, the minimum deadline for receiving applications for participation is, as a general rule, not less than 30 days from the date of sending the notice of contract or the invitation to confirm the interest; it is in no case less than fifteen days.
For markets whose estimated amount is less than the thresholds for European advertising, the deadline for receiving applications for participation is at least fifteen days from the date of the notice of contract, the invitation to confirm the interest or notice of the establishment of a list of selected candidates. The procuring entity may, however, set a time limit not less than 10 days from the date of issue of the notice of contract, where an emergency situation, duly justified by the notice, renders the minimum period provided for in this paragraph impossible to comply.
§ 2. Only economic operators invited to do so by the procuring entity following the evaluation by the procuring entity of the information provided may submit an offer. The procuring entity may limit the number of candidates to be invited to participate in the proceedings in accordance with Article 149, paragraph 2.
The deadline for receipt of the offers may be agreed between the procuring entity and the selected candidates, provided that all selected candidates have an identical time limit to prepare and submit their offers.
In the absence of an agreement on the deadline for receipt of tenders, the deadline is not less than 10 days from the date of receipt of the invitation to tender.
§ 3. The King may determine the additional procedural procedures applicable to the restricted procedure.
Negotiated procedure with prior competition
Art. 120. § 1^er. In a procedure negotiated with prior competition, any economic operator may submit an application for participation in response to a competitive call by providing information for the purpose of the selection that is claimed by the procuring entity.
For markets with an estimated amount equal to or greater than the thresholds set for European advertising, the minimum deadline for receiving applications for participation is, as a general rule, not less than thirty days from the date of sending the notice of contract or, where the call to competition is made by means of an indicative periodic notice, from the date of sending the invitation to confirm interest; it is in no case less than fifteen days.
For markets whose estimated amount is less than the thresholds for European advertising, the deadline for receiving applications for participation is at least 15 days from the date of the notice of contract, the invitation to confirm the interest or notice of the establishment of a list of selected candidates. The procuring entity may, however, set a time limit not less than 10 days from the date of issue of the notice of contract, where an emergency situation, duly justified by the notice, renders the minimum period provided for in this alienation, impossible to comply.
§ 2. Only economic operators who have received an invitation from the procuring entity following the evaluation of the information provided may participate in the negotiations. The procuring entity may limit the number of candidates admitted to participate in the proceedings in accordance with Article 149, paragraph 2.
The deadline for receipt of tenders may be agreed between the procuring entity and the selected candidates, provided that they all have the same time to prepare and submit their offers.
In the absence of an agreement on the deadline for receipt of tenders, the deadline is not less than 10 days from the date of receipt of the invitation to tender.
§ 3. The King may establish the additional procedural arrangements for the negotiated procedure with prior competition.
Competitive dialogue
Art. 121. § 1^er. Any economic operator may submit an application for participation in a competitive dialogue in response to a competitive call by providing information for the purpose of the selection that is requested by the procuring entity.
The minimum time limit for receipt of applications for participation is, as a general rule, not less than 30 days from the date of issue of the notice of contract or, where the call to competition is made by means of an indicative periodic notice, from the date of receipt of the invitation to confirm the interest; it is in no case less than fifteen days.
Only economic operators who have received an invitation from the procuring entity following the evaluation of the information provided may participate in the dialogue. The procuring entity may limit the number of candidates to be invited to participate in the proceedings in accordance with Article 149, paragraph 2. The market is awarded on the sole basis of the offer criterion with the best value for money, in accordance with Article 81, § 2, 3°.
§ 2. The procuring entity identifies its needs and requirements in the call to competition and/or in a descriptive document. On this occasion, and in the same documents, it also identifies and defines the attribution criteria selected and sets an indicative schedule.
§ 3. The procuring entity shall, with the participants selected in accordance with the relevant provisions of sections 147 to 152, open a dialogue whose purpose is to identify and define the means to best meet its needs. During this dialogue, it can discuss all aspects of the market with the selected participants.
During the dialogue, the procuring entity ensures equal treatment for all participants. To this end, it does not discriminately provide information that may benefit some participants from others.
In accordance with Article 13, the procuring entity shall not disclose to the other participants the proposed solutions or confidential information provided by one of the participants without the written and prior consent of the participant. This agreement does not take the form of a general renunciation but aims at specific information that is envisaged for communication.
§ 4. Competitive dialogue can take place in successive phases so as to limit the number of solutions to be discussed during the dialogue phase by applying the attribution criteria set out in the Notice of Appeal to Competition or in the descriptive document. In the notice of appeal to competition or descriptive document, the procuring entity indicates whether it will make use of this option.
§ 5. The procuring entity continues the dialogue until it is able to identify the solution(s) that are likely to meet its needs.
§ 6. After giving the closing of the dialogue and informing the remaining participants, the procuring entity invites each of them to submit its final offer on the basis of the solution(s) presented and specified during the dialogue. These offers include all necessary and necessary elements for the project.
At the request of the procuring entity, these offers may be clarified, clarified and optimized provided that they do not have the effect of modifying the essential aspects of the public offer or market, including the needs and requirements set out in the Notice of Call to Competition or in the descriptive document, where amendments to these aspects, needs or requirements are likely to distort competition or have a discriminatory effect.
§ 7. The procuring entity assesses the bids received on the basis of the award criteria set out in the notice of appeal to competition or in the document.
At the request of the procuring entity, negotiations may be conducted with the recognized bidder as having delivered the offer presenting the best value/price in accordance with Article 81, § 2, 3°, to confirm the financial commitments or other conditions set out in the offer by stopping the terms of the market, provided that this process does not result in a significant change of the essential aspects of the offer or the public market,
§ 8. The procuring entity may provide bonuses or payments to participants in the dialogue.
The King may establish additional procedural arrangements for competitive dialogue.
Innovation partnerships
Art. 122. § 1^er. In an innovation partnership, any economic operator may submit an application for participation in response to a notice of appeal to competition by providing information for the purpose of the selection that is requested by the procuring entity.
In market documents, the procuring entity defines the need for an innovative product, service or work that cannot be met by the acquisition of products, services or works already available on the market. It sets out the elements of this definition that set out the minimum requirements to be met by all offers. The information provided is sufficiently accurate to allow economic operators to determine the nature and scope of the required solution and to decide whether or not to participate in the procedure.
The procuring entity may decide to establish the innovation partnership with one or more partners conducting separate research and development activities.
The minimum time limit for receipt of applications for participation is, as a general rule, not less than 30 days from the date the notice was sent; it is in no case less than fifteen days. Only economic operators who have received an invitation from the procuring entity following the assessment of the information provided may participate in the procedure. The procuring entity may limit the number of candidates admitted to making an offer to be invited to participate in the proceedings, in accordance with section 149, paragraph 2. The market is awarded on the sole basis of the best value/price criterion, in accordance with Article 81, § 2, 3°.
§ 2. The Innovation Partnership aims at the development of an innovative product, service or work and the subsequent acquisition of the resulting supplies, services or work, provided that they correspond to the agreed levels of performance and the maximum costs between the procuring entity and the participants.
The innovation partnership is structured in successive phases following the development of the stages of the research and innovation process, which can include the stage of the manufacture of products, the provision of services or the execution of the work. The innovation partnership establishes intermediate objectives that partners must achieve and provides for payment of compensation in appropriate instalments.
Based on these objectives, the procuring entity may decide, after each phase, to terminate the innovation partnership or, in the case of an innovation partnership established with several partners, to reduce the number of partners by ending individual contracts, provided that, in the market documents, it has indicated these opportunities and the conditions for their implementation.
§ 3. Unless otherwise provided in this section, the procuring entity shall negotiate with the bidder(s) the original offer and all subsequent offers, with the exception of the final offer, with a view to improving its content.
Minimum requirements and allocation criteria are not negotiated.
§ 4. During the negotiation, the procuring entity ensures equal treatment of all bidders. To this end, it does not discriminately provide information that may benefit certain bidders. It shall notify in writing all bidders whose bids have not been eliminated under paragraph 5 of any changes to the technical specifications or other market documents other than those that define the minimum requirements. As a result of these changes, the procuring entity provides sufficient time to allow bidders to change their bids and resubmit them if necessary.
In accordance with Article 13, the procuring entity shall not disclose to other participants the confidential information provided by a candidate or bidder participating in the negotiations, without the written and prior agreement of the contracting entity. This agreement does not take the form of a general renunciation but aims at specific information that is envisaged for communication.
§ 5. Negotiations during the Innovation Partnership Procedures can take place in successive phases to limit the number of bids to be negotiated by applying the award criteria specified in the Notice of Contract, in the invitation to confirm interest or in market documents. The procuring entity indicates, in the notice of contract, the invitation to confirm the interest or documents of the market, if it will make use of this option.
During the selection of candidates, the procuring entity applies in particular the criteria relating to the capabilities of candidates in the field of research and development and the development and implementation of innovative solutions.
Only economic operators who have received an invitation from the procuring entity following the assessment of the required information may submit research and innovation projects that are designed to meet the needs defined by the procuring entity and that existing solutions do not allow for coverage.
In market documents, the procuring entity defines the provisions applicable to intellectual property rights. In the event of an innovation partnership involving several partners, in accordance with Article 13, the procuring entity does not disclose to other partners the proposed solutions or other confidential information provided by a partner in the partnership without the written and prior agreement of that partner. This agreement does not take the form of a general renunciation but aims at specific information that is envisaged for communication.
§ 6. The procuring entity ensures that the structure of the partnership, including the duration and value of its various phases, takes into account the degree of innovation of the proposed solution and the conduct of the research and innovation activities required for the development of an innovative solution not yet available on the market. The estimated value of supplies, services or work is not disproportionate to the investment required for their development.
§ 7. The King may set out the additional procedural modalities for the innovation partnership.
Use of direct negotiated procedure with prior competition
Art. 123. § 1^er. Public procurement can only be negotiated directly with prior competition for markets with an estimated amount below the threshold for European advertising.
§ 2. In the direct negotiated procedure with prior competition, any interested economic operator may submit an offer in response to a market notice.
The minimum deadline for receipt of bids is twenty-two days from the date of receipt of the notice of contract. Article 118, § 4, is applicable.
Where an emergency situation, duly justified by the procuring entity, renders the minimum period provided for in the second paragraph, impossible to comply, it may set a time limit not less than 10 days from the date of the notice of contract.
The offer includes information for the selection requested by the procuring authority.
§ 3. The King may establish additional procedural arrangements for the direct negotiated procedure with prior competition.
Use of the negotiated procedure without prior competition
Art. 124. § 1^er. The procuring entity may use a negotiated procedure without prior competition but, if possible, after consultation with several economic operators, in the following cases:
1° in the case of a public contract of work, supplies or services, where the expenditure to be approved, excluding the value added tax, is less than the amounts fixed by the King;
2° where no appropriate offer or offer or any application for participation or any appropriate request for participation has been filed in response to a pre-competition procedure, provided that the initial market conditions are not substantially amended.
An offer is not considered appropriate when it is unrelated to the market because it is clearly not able, without substantial modifications, to meet the needs and requirements of the procuring entity specified in the market documents. An application for participation is not considered appropriate when the economic operator concerned must or may be excluded under section 149, paragraph 1^eror Article 151, § 1^eror does not meet the selection criteria established by the procuring entity under section 149 or section 151;
3° where a market has passed solely for the purposes of research, experimentation, study or development and not for the purpose of ensuring profitability or depreciation of research and development costs and to the extent that the procurement of such a contract does not prejudice the competition of subsequent contracts that pursue such purposes;
4° where work, supplies or services can only be provided by a particular economic operator for any of the following reasons:
(a) the purpose of the market is the creation or acquisition of a unique artwork or artistic performance;
(b) there is no competition for technical reasons;
(c) protection of exclusive rights, including intellectual property rights.
Exceptions set out in points (b) and (c) apply only where there is no alternative or reasonable replacement solution and the lack of competition does not result from an artificial restriction of market conditions;
5° to the extent strictly necessary, where the compelling urgency resulting from unpredictable events for the procuring entity does not allow for the time required by open, restricted and negotiated procedures with prior competition. The circumstances invoked to justify the imperative emergency cannot, in any case, be attributed to the procuring entity;
6° in the case of procurement of supplies for additional deliveries made by the original and intended supplier, either for the partial renewal of supplies or facilities, or for the extension of existing supplies or facilities, where the change of supplier would require the procuring entity to acquire supplies with different technical characteristics resulting in in incompatibility or technical difficulties of disproportionate use and maintenance;
7° in the case of contracts of complementary supplies of the same nature and with the same characteristics which are attributed, following an unforeseen circumstance, to the supplier of the initial market, provided that the cumulative amount of the contracts of complementary supplies does not exceed fifty percent of the amount of the original market and that the cumulative amount of all markets does not reach the amounts fixed for advertising at the European level;
8° for new work or services consisting in the repetition of similar work or services entrusted to an economic operator to which the same procuring entities have awarded a previous contract, provided that such work or services are in accordance with a basic project and that this project has been the subject of a first contract passed according to the procedure referred to in Article 117, § 1^erParagraph 1^er. The basic project specifies the extent of possible additional work or services and the terms and conditions of their assignment. However, the possibility of using this procedure must be indicated as soon as the first market is competitive and the total amount envisaged for the additional work or services must already be taken into account by the procuring entities to determine whether or not the thresholds for European advertising are met;
9° when it comes to listed and purchased supplies at a stock exchange;
10° for opportune purchases, when it is possible to acquire supplies by taking advantage of a particularly advantageous occasion that occurred in a very short period of time and for which the price to be paid is considerably lower than the prices normally practised on the market;
11° for the purchase of supplies or services under particularly advantageous conditions, either from a supplier permanently certifying its commercial activities, or from the curators, agents responsible for a transfer under the authority of justice or liquidators of a bankruptcy, judicial reorganization or similar procedure existing in national legislation or regulations;
12° in the case of a public service market considered, where the service market is in response to a competition and must, in accordance with the applicable rules, be awarded to the recipient or to one of the winners of the competition. In the latter case, all the contest winners are invited to participate in the negotiations.
§ 2. For markets with an estimated amount less than the thresholds for European advertising, Article 149 on selection criteria is not applicable to the negotiated procedure without prior competition. However, when the procuring entity is a procuring authority, sections 67 and 68 are well implemented.
In addition, unless otherwise provided in the market documents, Article 81 concerning the criteria for award is not applicable to contracts passed by negotiated procedure without prior competition whose value is less than the ceiling referred to in paragraph 1^er1°. This is also the case where the procedure is used without prior publication in the following cases:
1° the various cases in which only an economic operator can be consulted as referred to in paragraph 1^er, 4°, 6° to 8°, regardless of the estimated amount;
2° in the case of the imperious emergency as referred to in paragraph 1^er5°, for markets with an estimated value less than the thresholds for European advertising;
3° in respect of listed and purchased supplies at a raw material exchange as referred to in paragraph 1^er9°, for markets with an estimated value less than the thresholds for European advertising;
4° when it comes to acquisitions of opportunity or particularly advantageous conditions as referred to in paragraph 1^er, 10° and 11°, for markets with an estimated amount less than the thresholds for European advertising.
The above-mentioned softenings do not in any way prevent the said provisions from being applied in the market documents.
§ 3. The King may determine the additional procedural arrangements for the negotiated procedure without prior competition.
CHAPTER 3. - Techniques and instruments for electronic and aggregate markets
Framework agreements
Art. 125. § 1^er. A procuring entity may enter into framework agreements as long as it applies the procedures set out in this Act.
The duration of a framework agreement, as well as the duration of the contracts based on this framework agreement, may not exceed eight years, except in exceptional cases duly justified, including the purpose of the framework agreement.
§ 2. Contracts based on a framework agreement have passed on the basis of objective rules and criteria that may include the competition of economic operators who are parties to the framework agreement. These rules and criteria are set out in the framework agreement market documents.
The objective rules and criteria referred to in paragraph 1^er ensure equal treatment of economic operators who are parties to the agreement. When such bids include competitive bidding, the procuring entity sets a sufficient time limit to allow the presentation of bids for each specific market and assigns each contract to the bidder who has presented the best offer on the basis of the award criteria set out in the contract documents relating to the framework agreement.
The procuring entity does not use the framework agreement in an abusive manner or in a manner that prevents, restricts or distorts competition.
Dynamic acquisition systems
Art. 126. The procuring proceeding may, under the conditions referred to in section 44, use a dynamic procurement system for contracts of work, supplies or common-use services that are commonly available on the market and whose characteristics meet its needs. Notwithstanding Article 119, by derogation from Article 44, § 2, paragraph 2, the following deadlines apply:
1° the minimum time limit for receipt of applications for participation is, as a general rule, not less than thirty days from the date of receipt of the notice of contract or, where the call to competition is made by means of an indicative periodic notice, from the date of sending of the invitation to confirm the interest; it is in no case less than fifteen days. No additional time limit for receipt of requests for participation is applicable after the invitation to tender for the first specific market within the dynamic acquisition system;
2° the minimum deadline for receiving bids is at least ten days from the date of sending the invitation to bid. Article 119, § 2, second and third paragraphs, applies.
The King sets out the additional material and procedural arrangements that govern the dynamic acquisition system.
Electronic auctions
Art. 127. The procuring entity may, under the conditions set out in section 45, use electronic auctions where new prices are presented, revised downwards, and/or new values relating to certain elements of the bids.
The King sets out the additional material and procedural arrangements that govern the electronic auction.
Electronic catalogues
Art. 128. Where the use of electronic means of communication is required, the procuring entity may require that offers be presented in the form of an electronic catalogue or that they include an electronic catalogue, in accordance with the terms and conditions of section 46.
The King sets out the additional material and procedural arrangements that govern the use of electronic catalogues.
Central and central procurement activities
Art. 129. The procuring entity may, in accordance with the terms and conditions of Article 47, §§ 2 to 4, acquire supplies and/or services from a procurement plant offering centralized procurement activities as referred to in Article 2, 7°, a).
It may also benefit, in respect of works, supplies and/or services, from the centralized procurement activities of a procurement plant as referred to in section 2, 7°, (b):
1° through a market entered into by the said purchasing centre;
2° as part of a dynamic acquisition system set up by a purchasing power plant; or
3° through a framework agreement signed by this purchasing power plant.
Where a dynamic acquisition system established by a purchasing power plant is likely to be used by other procuring entities, this is reported in the market notice setting the said dynamic procurement system in place.
The conditions and terms referred to in Article 47, §§ 2 to 4 are applicable, except Article 47, § 2, 3°.
Markets passed by a procurement centre for centralized procurement activities are considered to be past markets to carry out activities referred to in sections 96 to 102.
Occasional joint markets
Art. 130. Two or more procuring entities may agree to move specific markets together.
When a procurement procedure is carried out in its entirety on behalf of and on behalf of all relevant procuring entities, they are jointly responsible for the fulfilment of their obligations. This is also the case where only one procuring entity manages the procurement process, acting on its own behalf and on behalf of the other procuring entities concerned.
Where a procurement procedure is not conducted in its entirety on behalf of and on behalf of the relevant procuring entities, the procuring entities are solely responsible for the parties to the joint proceedings. Each procuring entity is solely responsible for the performance of its obligations to the parties of the proceedings on its own behalf and on its own behalf.
The King may establish additional material and procedural arrangements for the execution of these joint markets.
Markets involving procuring entities from different Member States
Art. 131. Without prejudice to articles 113 and 114, procuring entities of different Member States may jointly enter a public market, use centralized procurement activities proposed by procurement facilities located in another Member State, enter into a framework agreement, establish a dynamic procurement system or establish a joint entity. They can also contract on the basis of a framework agreement or dynamic acquisition system.
The procuring entity shall not use the means provided for in paragraph 1^er in order to avoid the application of mandatory provisions of public law in accordance with the law of the Union to which it is subject.
The conditions and terms referred to in Article 49, §§ 2 to 4 shall apply, except Article 49, § 2, paragraph 2, 3, and the reference to Article 43, § 1^er2 .
Competition
Art. 132. The procuring entity may organize competitions by applying procedures that are adapted to the provisions of Title 1^er and title 3, chapter 1^erand the additional material and procedural modalities to be determined by the King.
Access to participation in competitions cannot be limited:
1° in the territory or part of the Kingdom;
2° on the grounds that participants would be required under certain legal provisions to be either natural persons or legal persons.
When competitions are limited to a limited number of participants, the procuring entity sets clear and non-discriminatory selection criteria. In all cases, the number of candidates invited to participate in the competition is sufficient to guarantee real competition.
CHAPTER 4. - Procedure
Section 1^re. - Preparation
Market consultations, prior consultation, technical specifications, labels, test reports, certification and other evidence
Art. 133. The provisions for the preparation of the following market shall apply to the public markets covered by this title:
1° Article 51 concerning pre-market consultations;
2° Article 52 concerning the prior participation of candidates or bidders;
3° Article 53 concerning the integration of technical specifications into market documents;
Article 54, § 1^er and 2, on labels;
5° Article 55 concerning test reports, certification and other evidence.
Provision of technical specifications regularly targeted
Art. 134. At the request of the economic operators interested in obtaining a market, the procuring entities communicate the technical specifications regularly referred to in their procurement of supplies, works or services, or the technical specifications to which they intend to refer for the markets for which the competition is made by means of an indicative periodic notice. These technical specifications are made available by electronic means offering free, unrestricted, direct and complete access.
However, technical specifications are transmitted by means other than electronic means where it is not possible or mandatory to offer free, unrestricted, complete and electronic access to certain market documents for one of the reasons mentioned in article 14, § 2, or where it is not possible to offer free, unrestricted, complete and electronic access to certain market documents because the procuring entity intends to apply §3. In this case, access is also free.
Where technical specifications are based on documents available by electronic means providing free, non-restricted, direct and complete access to interested economic operators, the indication of the reference of these documents is considered sufficient.
Firm and conditional sliced market
and renewal clauses
Art. 135. The procuring entity may use a split market in one or more firm slices and one or more conditional slices. The conclusion of the contract relates to the entire market but only engages the procuring entity for the firm slices. The execution of each conditional sentence is subject to a decision of the procuring entity to the notice of the award in accordance with the terms and conditions set out in the original contract documents. The enforcement of the conditional sentence cannot change the overall nature of the market.
Upon conclusion, a contract may include one or more extensions, as described in the initial market documents. The total duration, including renewals, may generally not exceed eight years from the conclusion of the market. Reappointment cannot result in a change in the global nature of the market.
The provisions of this article shall be drafted in a clear, precise and univocal manner. These clauses indicate the scope of application and the nature of any consequences that may result from it and the conditions under which it may be used.
The King may set out additional terms for the use of firm and conditional-size markets, as well as for the use of renewal clauses.
Variants and options
Art. 136. § 1^er. The procuring entity may authorize bidders to submit variants or options or require such a presentation. These variants or options must meet the minimum requirements imposed by the procuring entity. The procuring entity specifies in the market documents whether it authorizes or imposes the introduction of variants or options and, where applicable, what minimum requirements they must meet, as well as each specific condition for their filing.
By derogation from paragraph 1 and in the absence of a provision to the contrary in market documents, however, bidders may introduce variations or options for markets whose value is less than the thresholds set for European advertising, without reference to market documents. These variants or options are called "free variants" and "free options".
The procuring entity refers to market documents if variants can only be introduced provided that a basic offer is also filed. However, options cannot be introduced without a basic offer or, where applicable, without a variant. Market documents must refer to the latter obligation.
The procuring entity ensures that the selected award criteria may apply to the required and authorized variants that meet the minimum requirements and the basic offers.
§ 2. For procurement procedures for public procurement of supplies or services, the procuring entity does not reject a variant or option on the sole ground that it would, if retained, result in either a service market instead of a supply market or a supply market instead of a service market.
§ 3. The procuring entity is never obligated to lift an option, either at the conclusion or during the performance of the contract.
§ 4. The King may decide on the additional material and procedural arrangements for variants and options for the procedures it determines.
Field Procurement Division
Art. 137. The procuring entity may decide to make a contract in the form of separate lots, which determines the size and object.
In the notice of contract, in the invitation to confirm interest or, if the means of competition is a notice of the existence of a qualification system, in the invitation to bid or negotiate, the procuring entities indicate whether it is possible to submit an offer for a single batch, for several lots or for all lots.
The terms and conditions of Article 58, § 2, are applicable. However, the reference to the notice of contract should be read as a reference to the notice of contract or the invitation to confirm interest, bid or negotiate.
Time frame
Art. 138. The time frame shall be fixed in accordance with the conditions and terms referred to in Article 59. References to minimum time limits shall be read as references to the minimum time limits set out in articles 118 to 124. The reference to the expedited procedure must be read as a reference to the situation referred to in Article 118, § 3.
Section 2. - Publication and transparency
Tentative periodic review
Art. 139. § 1^er. The procuring entity may disclose its intentions with respect to procurement through the publication of an indicative periodic notice.
§ 2. The procuring entity may also make an appeal to competition through an indicative periodic notice for restricted procedures and procedures negotiated with prior competition.
The maximum duration of the period covered by the indicative periodic notice is twelve months from the date of transmission of the notice for publication.
§ 3. The King sets out the information that must be included in the indicative periodic notice or on the buyer profile of the procuring entities.
Opinion on the existence of a qualification system
Art. 140. When the procuring entity chooses to establish a qualification system in accordance with section 148, the system shall be subject to a specific notice for that purpose, indicating the purpose of the qualification system, its validity period and the terms and conditions of access to the rules governing it.
When this notice serves as a competitive appeal, its use is limited to restricted or negotiated procedures with prior competition, competitive dialogues and innovation partnerships.
The King sets out the information that must appear in the opinion on the existence of a qualification system.
Notice regarding the establishment of a list of selected candidates
Art. 141. In restricted or negotiated proceedings with prior competition, where the procuring entity chooses to establish a list of selected candidates, the call for competition is made by means of a notice relating to the establishment of a list of selected candidates.
The list of selected candidates is valid for up to three years from the date of the selection decision.
During its validity period, the list is closed to new candidates and the procuring entity invites all candidates on the list to file an offer for any contract to pass. The establishment of a list of selected candidates does not, however, exclude a separate contract from the publication of a market notice.
This provision is applicable only to markets whose estimated amount is less than European advertising thresholds.
Market Opinion
Art. 142. Market notices can be used as a competitive appeal for all proceedings.
The King sets out the information that must be included in the market notice.
Contract award notice
Art. 143. § 1^er. For public procurements or framework agreements with an estimated amount equal to or greater than the thresholds for European advertising, the procuring entity sends a contract award notice relating to the results of the procurement procedure. This notice is sent no later than 30 days after the conclusion of the contract or framework agreement.
§ 2. Where the call for competition for the relevant market was made in the form of an indicative periodic notice and the procuring entity has decided not to award new contracts during the period covered by this notice, the notice of contract award expressly refers to it.
In the case of a framework agreement entered into pursuant to section 125, the procuring entity does not have an obligation to send a notice regarding the results of the procurement procedure for each contract based on the framework agreement.
However, subsection 1 applies to each market based on a dynamic procurement system, even if the procuring entity may choose to consolidate the relevant markets on a quarterly basis. In such a case, the procuring entity sends these notices consolidated no later than thirty days after the end of each quarter.
§ 3. Certain information relating to the award of a contract or the conclusion of a framework agreement may not be published where their disclosure would impede the application of laws or otherwise be contrary to the public interest or would prejudice the legitimate business interests of an economic operator in particular, public or private, or could adversely affect fair competition between economic operators.
Drafting and publication of notices
Art. 144. The King sets out the terms and conditions for publication of notices, both at the national and European level.
Provision of market documents electronically
Art. 145. § 1^er. Except in the cases referred to in subsection 2 or 3, the procuring entity shall provide, electronically, free, unrestricted, complete and direct access to market documents from the date of publication of a notice in accordance with the rules established under section 144 or from the date of sending of the invitation to confirm the interest.
When the call to competition is made by means of a notice on the existence of a qualification system, this access is offered as soon as possible, no later than the date of the invitation to submit an offer or to negotiate. The text of the notice or invitation specifies the Internet address to which documents are accessible.
§ 2. Where there is no obligation or where it is not possible to offer free, unrestricted, complete and electronic access to certain market documents for one of the reasons mentioned in article 14, § 2, paragraph 1^er the procuring entity may indicate, in the notice or invitation to confirm the interest, that the relevant market documents will be transmitted by other means than electronic means, in accordance with Article 14, § 2, paragraph 3 . In this case also, access is free.
In such a case, the deadline for tendering is extended by five days, except for the case of a duly motivated emergency referred to in Article 118, § 3, and where the time limit is set by mutual agreement, in accordance with Article 119, § 2, second paragraph, or Article 120, § 2, second paragraph.
§ 3. Where it is not possible to offer free, unrestricted, complete and direct electronic access to certain market documents because the procuring entity intends to apply Article 13, § 3, these shall indicate, in the notice or invitation to confirm the interest, or when the competitive appeal is made by means of a notice on the existence of a qualification system, in the relevant market documents, In such a case, the time limit for tendering is extended by five days, except in the case of a duly motivated emergency referred to in Article 118, § 3, and where the time limit is set by mutual agreement in accordance with Article 119, § 2, paragraph 1^eror Article 120, § 2, second paragraph.
§ 4. The procuring entity shall provide to all bidders participating in the procurement proceedings additional information relating to market documents and any supporting documentation not later than six days before the deadline for receipt of tenders, provided that the request has been made in due course. In the case of an expedited open procedure referred to in Article 118, § 3, this period is four days.
Candidate invitations
Art. 146. § 1^er. In limited procedures, competitive dialogue procedures, innovation partnerships and procedures negotiated with prior competition, the procuring entity simultaneously and in writing invites the successful applicants to present their offers, participate in the dialogue or negotiate.
When an indicative periodic notice serves as an appeal to competition in accordance with Article 117, § 2, 1°, the procuring entities simultaneously and in writing invite the economic operators who have shown their interest to confirm their interest.
§ 2. Invitations referred to in paragraph 1^er include the e-mail address to which market documents were made available directly electronically. Invitations are accompanied by market documents, where they have not been given free, unrestricted, complete and direct access for the reasons set out in Article 145, § 2 or 3, and have not already been made available by other means.
The King determines the other information that must be contained in the invitation, as well as the additional terms.
Section 3. - Selection of participants and award of contracts
Sub-section 1^re. - General principles
Principles relating to selection and attribution
Art. 147. § 1^er. For the purpose of selecting participants in procurement procedures, the following rules apply:
1° the procuring entity having established rules and criteria for exclusion of bidders or candidates in accordance with section 149, paragraph 1^eror Article 151, § 1^erexcludes economic operators according to these rules and criteria;
2° it selects bidders or candidates in accordance with the objective rules and criteria established under articles 149 and 151;
3° in restricted procedures, in competitively negotiated procedures, in competitive dialogues and in innovation partnerships, it limits, where applicable, in accordance with Article 149, paragraph 2, the number of candidates selected under items 1° and 2° of this paragraph.
§ 2. When the call for competition is made by a notice on the existence of a qualification system and for the purpose of selecting participants in specific procurement procedures subject to competition, the procuring entity:
1° qualifies economic operators in accordance with Article 148;
2° applies to these qualified economic operators the provisions of paragraph 1^er related to restricted procedures, negotiated procedures, competitive dialogues or innovation partnerships.
§ 3. When choosing participants in a restricted or negotiated procedure, a competitive dialogue or an innovation partnership, making their decision on qualification or when the criteria and rules are updated, the procuring entity cannot:
1° impose administrative, technical or financial conditions on some economic operators that would not have been imposed on others;
2° require tests or justifications that would duplicate objective evidence already available.
§ 4. Where information or documents to be submitted by economic operators are, or appear to be, incomplete or erroneous, or where certain documents are missing, the procuring entity may, without prejudice to section 121, § 6, paragraph 2, request the relevant candidates or bidders to present, complete, clarify or specify the information or documents concerned within an appropriate time limit, provided that such requests fully comply with the principles of equal treatment and transparency and,
A change in the composition of staff made available for the performance of the contract, which is the direct consequence of the measures to resolve conflicts of interest or situations of prior participation, is considered not to result in an amendment of an essential element of the offer.
§ 5. The procuring entity shall verify the conformity of bids submitted by the bidders thus selected to the rules and requirements applicable to bids and shall assign the contract based on the award criteria or criteria established in accordance with sections 81 and 153, taking into account section 136.
Without prejudice to paragraph 6, where the procuring entity finds that the most economically advantageous offer does not meet the obligations applicable in the fields of environmental, social or labour law and referred to in Article 7, it nevertheless decides not to assign the contract to the bidder who has given the offer, provided that it is an obligation whose non-compliance is also penalized. In other cases where it finds that this offer does not meet the above-mentioned obligations, it may proceed in the same manner.
§ 6. As part of an open procedure or a direct negotiated procedure with prior competition, the procuring entity may decide to review the bids before verifying the suitability of the bidders, provided that the relevant provisions of sections 147 to 153 are complied with, including the rule that the contract is not awarded to a bidder who should have been excluded pursuant to section 151 or that does not meet the criteria established by the procuring entity^erand Article 151.
Sub-section 2. - Qualification and qualitative selection
Qualification systems
Art. 148. § 1^er. The procuring entities may, if they wish, establish and manage an economic operator qualification system.
Entities that establish or manage a qualification system ensure that economic operators can at any time ask to be qualified.
§ 2. The system provided for in paragraph 1^er can include several qualification stages.
The procuring entities establish objective rules and criteria for the exclusion and selection of economic operators who request to be qualified, and objective criteria and rules for the operation of the qualification system, covering aspects such as registration to the system, periodic updating of qualifications, if any, and the duration of the system.
When these criteria and rules contain technical specifications, sections 53 to 55 apply. These criteria and rules may be updated as necessary.
§ 3. The criteria and rules referred to in paragraph 2 shall be provided to economic operators upon request. These updated criteria and rules are communicated to interested economic operators.
If the procuring entity considers that the qualification system of certain third-party entities or organizations meets its requirements, it shall communicate to interested economic operators the names of such entities or third-party organizations.
§ 4. A survey of qualified economic operators is maintained; it can be divided into categories by type of markets for which qualification is valid.
§ 5. When a competitive bid is made using a notice on the existence of a qualification system, the specific contracts of work, supplies or services covered by the qualification system are awarded according to restricted or negotiated procedures, in which participants are selected among the candidates already qualified according to such a system.
§ 6. If fees are charged for qualification requests or for updating or retaining a qualification already obtained under the system, they are proportionate to the costs incurred.
Qualitative selection criteria
Art. 149. The procuring entity may establish objective rules and criteria for the exclusion and selection of bidders or candidates; these rules and criteria are available to interested economic operators.
Where procuring entities are required to ensure an appropriate balance between the specific characteristics of the procurement process and the means required for its completion, they may, within the framework of limited or negotiated procedures, establish competitive dialogues or innovation partnerships, establish objective rules and criteria that reflect this need and allow the procuring entity to limit the number of candidates to be invited to submit an offer or to negotiate. However, the number of successful candidates must take into account the need to ensure sufficient competition.
Use of capacities of other entities
Art. 150. § 1^er. Where the objective rules and criteria for the exclusion and selection of economic operators who request to be qualified under a qualification system include requirements relating to the economic and financial capacity of the economic operator, or its technical and professional capabilities, the operator may, if any, assert the capabilities of other entities, regardless of the legal nature of the relationship between itself and those entities.
Where the objective rules and criteria for the exclusion and selection of candidates and bidders include requirements for the economic and financial capacity of the economic operator, or its technical and professional capabilities, the operator may also, if necessary and for a particular market, assert the capabilities of other entities.
When an economic operator uses the capabilities of other entities with respect to criteria relating to economic and financial capacity, the procuring entity may require, provided that this possibility has not been excluded in the market documents, that the economic operator and other entities in question are jointly responsible for the performance of the market. However, this joint responsibility must be accepted in writing by the entity whose capacity is invoked to be effective. Where the written acceptance referred to above is not provided, the candidate or bidder may not use such a capacity. This paragraph does not prejudice the solidarity liability provided for under other laws, including social, tax or salary debts.
§ 2. For public works markets, service markets and installation and installation work in a supply market, the procuring entity may require that certain essential tasks be performed directly by the bidder himself or, if the offer is submitted by a group of economic operators referred to in Article 8, § 2, by a participant of the said grouping.
§ 3. The King may establish additional material and procedural arrangements for the use of the capabilities of other entities.
Use of the exclusion grounds and selection criteria set out in Title 2
Art. 151. § 1^er. The objective rules and criteria for the exclusion and selection of economic operators who request to be qualified under a qualification system and the objective rules and criteria for the exclusion and selection of candidates and bidders in open, restricted or negotiated procedures, in competitive dialogues or in innovation partnerships may include the grounds for exclusion listed in sections 67 to 69, under the conditions imposed under these provisions.
When the procuring entity is a procuring authority, these criteria and rules include the grounds for exclusion set out in sections 67 to 69, subject to the conditions set out in them.
Where applicable, the corrective measures referred to in section 70 will also be taken into account.
§ 2. The criteria and rules referred to in paragraph 1^er may include the selection criteria set out in section 71, imposed under this provision.
§ 3. For the purpose of applying paragraphs 1^er and 2, sections 73 to 76 apply.
Applicants or bidders must, either at the time of filing applications for participation or bids, or at the time of application for qualification, with respect to contracts equal to or greater than the threshold for European advertising, produce the Single European Market Document referred to in Article 73, except in the case of recourse to the negotiated procedure without prior competition in the cases referred to in Article 124, § 1^er4° to 6° and 8° to 11°.
The King may, for markets with less than the threshold for European advertising, define cases where the Single European Market Document must also be produced in accordance with paragraph 2.
Quality Assurance Standards and Environmental Management Standards
Art. 152. With respect to environmental quality standards, the procuring entity applies the rules imposed by and under section 77.
Subsection 3. - Market allocation
Attribution criteria, life cycle costs, cost and price control and abnormally high or low offers, non-market allocation
Art. 153. The following provisions relating to the award or, where appropriate, non-assignment of a contract are applicable in the public markets covered by this title:
1° Article 81 relating to attribution criteria;
2° Article 82 relating to life cycle costs;
3° Article 84, concerning the control of costs and prices and abnormally low or high offers;
4° Article 85 concerning the non-assignment of a contract.
Section 4. - Offers containing products from third countries and their relations
Offers containing products from third countries
Art. 154. § 1^er. This Article applies to offers containing products originating from third countries with which the Union has not entered into, in a multilateral or bilateral framework, an agreement ensuring comparable and effective access of EU companies to the markets of these third countries. It is without prejudice to the obligations of the Union or its member States with respect to third countries.
§ 2. Any offer for the award of a supply market may be rejected when the share of products originating from third countries, determined in accordance with Regulation No. 952/2013 of the European Parliament and of the Council of 9 October 2013 establishing the Union Customs Code, exceeds fifty percent of the total value of the products composing this offer.
For the purposes of this section, software used in telecommunications network equipment is considered to be products.
§ 3. Subject to the second paragraph, where two or more offers are equivalent to the allocation criteria set out in section 81, a preference shall be accorded to bids that cannot be rejected under paragraph 2. The amount of these offers is considered equivalent, for the purposes of this section, if their price deviation does not exceed three percent.
However, an offer will not be preferred to another under the first paragraph where its acceptance would require the procuring entity to acquire equipment with technical characteristics different from those of the existing equipment, resulting in in incompatibility or technical difficulties of use or maintenance or disproportionate costs.
§ 4. For the purposes of this article, for the determination of products originating from third countries provided for in paragraph 2, shall not be taken into account third countries to which the benefit of Directive 2014/25/EU has been extended by a decision of the Council in accordance with paragraph 1^er.
Relations with third countries on labour markets, supplies and services
Art. 155. Economic operators may inform the point of contact referred to in Article 163, § 2, of:
1° difficulties encountered in fact or law in obtaining services markets in third countries;
2° difficulties encountered in fact or law, due to the fact that the international labour standards referred to in Appendix II were not met when these operators attempted to obtain service markets in third countries.
CHAPTER 5. - Market performance
Delegation to the King concerning the setting of general rules of execution
Art. 156. § 1^er. For contracts referred to in Article 94, paragraph 1^er, 1°, the King sets the general rules of enforcement, including the rules relating to market and subcontract amendments, as well as the provisions relating to the end of the market. Thus, for the markets to be determined by Him, the King may establish rules for the control by the procuring powers of the absence of grounds for exclusion in the leader of subcontractors.
For contracts referred to in Article 94, paragraph 1^er, 2°, the King sets the rules relating to market changes and subcontracting, as well as the provisions relating to the end of the market.
§ 2. In the matter of subcontracting, the King may, pursuant to paragraph 1^erfor the markets to be determined by Him, limit the chain of subcontractors, in accordance with the terms to be determined by Him.
The King may also, pursuant to paragraph 1^erParagraph 1^er and in accordance with the rules to be determined by Him:
1° extend the audit by the procuring authorities of the absence of grounds for exclusion in the leader of subcontractors to the procurement procedure;
2° for the labor markets to be determined by Him, passed by the procuring authorities, to extend the aggregation as a contractor in accordance with the Act of 20 March 1991 organizing the aggregation of construction contractors and its enforcement orders to all subcontractors of the chain.
Specific conditions for market execution
Art. 157. The procuring entity may provide for specific conditions relating to the execution of a contract as long as they are related to the subject-matter of the market within the meaning of Article 81, § 3, and indicated in the call to competition or in the documents of the market. These conditions may take into account considerations relating to economics, innovation, the environment, the social sphere or employment.
CHAPTER 6. - Social services and other specific services
Social services and other specific services - Scope of application
Art. 158. This chapter applies to public contracts with the purpose of social services and other specific services listed in Appendix III, except where these contracts are subject to the small amount of Chapter 7.
Principles on social services and other specific services
Art. 159. § 1^er. Depending on the nature and characteristics of the need to be met, the procuring entity may, for the procurement of the services contracts referred to in section 158:
1° resort to direct negotiated procedure with prior competition;
2° use the negotiated procedure without prior competition where the estimated amount of the market is less than 1,000,000 euros or, where the estimated amount of the market is equal to or greater than that threshold in the cases of application referred to in Article 124, with the exception of the cases referred to in 1° and 7° of that provision;
3° expressly refer to one of the procurement procedures or procurement techniques set out in Chapters 2 and 3, with the exception of the direct negotiated procedure with pre-competition and the negotiated procedure without prior competition, without the requirements for the application of these procedures necessarily being met;
4° use a sui generis procedure with prior publication of which it sets out the terms.
Procedures referred to in paragraph 1^er must, in any case, respect the principles of transparency, proportionality and equal treatment of economic operators.
The procuring entity specifies either the relative weighting it assigns to each of the criteria chosen to determine the most economically advantageous offer, or their decreasing order of importance. If not, the attribution criteria have the same value.
§ 2. If the procuring entity applies in accordance with paragraph 1^erParagraph 1^er, 1°, the procedure negotiated directly with prior competition, it is at least obliged to comply with the provisions of title 1, chapter 1 of title 3, title 4, chapter 1 of title 5, and articles 51, 52, 81, 82, 85, 123 § 2, 138, 147, 149, 150, 156 and 157. When the procuring entity is a procuring authority, it is also required to comply with sections 67 to 70 and 151, with the exception of the first paragraph, paragraph 1.
The other provisions of the Act are not applicable unless otherwise provided in market documents.
§ 3. If the procuring entity applies in accordance with paragraph 1^erParagraph 1^er, 2°, the procedure negotiated without an appeal for prior competition, it is at least obliged to comply with the provisions of title 1, chapter 1 of title 3, title 4, chapter 1 of title 5, and articles 51, 52, 81, 82, 85, 123 § 2, 138, 147, 149, 150, 156 and 157. Where the procuring entity is a procuring authority, it is also required to comply with sections 67 to 70 and 151 except the first paragraph, paragraph 1.
The other provisions of the Act are not applicable unless otherwise provided in market documents.
§ 4. If the procuring entity opts for the case referred to in paragraph 1^erParagraph 1^er, 3°, it is required to apply the procurement procedure to which it refers in its entirety and is subject to the provisions of this Act.
§ 5. If the procuring entity opts for the case referred to in paragraph 1^erParagraph 1^er4°, it is required to comply with the provisions of title 1, chapter 1 of title 3, title 4 and chapter 1 of title 5. Where the procuring entity is a procuring authority, it is also required to comply with sections 67 to 70 and 151, with the exception of the first paragraph, paragraph 1.
It is also required to apply the terms and conditions that it has established itself. For the fixation of these terms, it may:
1st draw on the procurement procedures and procurement techniques provided for in this title; or
2° refer to certain items of the procurement procedures and procurement techniques provided for in this title and, where applicable, provide for exemptions.
Publication
Art. 160. § 1^er. Except where the negotiated procedure is used without prior competition in accordance with Article 159, § 1^erParagraph 1^er, 2°, the procuring entity may use one of the following notices as a means of appeal to competition and indicate the option of section 159 to which it is used:
1° a market notice, for all procedures;
2° an indicative periodic notice, when the market has passed through a restricted or negotiated procedure with prior competition;
3° an opinion on the existence of a qualification system, when the market has passed through a restricted or negotiated procedure with prior competition or through a competitive dialogue or an innovation partnership;
4° a notice relating to the establishment of a list of selected candidates, where the market, whose estimated amount is less than the European advertising thresholds, has passed through a restricted or negotiated procedure with prior competition.
In the cases referred to in Article 159, § 1^erParagraph 1^er, 1° or 3°, the notice used by the procuring entity refers to the name of the procedure in question.
In the case referred to in Article 159, § 1^erParagraph 1^er, 4°, where the procuring entity is inspired by the procurement procedures and procurement techniques provided for in this title, it explains, in a succinct manner, in the opinion that it has chosen to use, the concrete terms and conditions of the procedure. It explains these modalities more accurately in market documents.
In the case referred to in Article 159, § 1^erParagraph 1^er4°, where the procuring entity refers in part to the procurement procedures and procurement techniques set out in this Act, the procuring entity shall indicate in the notice that it has chosen to use the applicable provisions and, where applicable, the exemptions.
§ 2. By derogation from sections 139, the indicative periodic notice is published continuously and may cover a period of more than 12 months. By derogation from section 140, the opinion on the existence of a qualification system is also published on an ongoing basis.
§ 3. The procuring entity that has awarded a public procurement contract for the services referred to in section 158, discloses the results of the procurement procedure through a notice of contract award. Market award notices can be grouped on a quarterly basis. In this case, they send these notices grouped no later than thirty days after the end of each quarter.
This paragraph is applied only when the estimated amount of the market is equal to or greater than 1,000,000 euros.
§ 4. The notices referred to in this article shall be published and written in accordance with the rules established by the King.
Markets reserved for certain services
Art. 161. The Federal State, the Communities and the Regions, and the entities they designate, which are also procuring powers, may reserve to some organizations the right to participate in their respective procurement procedures relating exclusively to the health, social or cultural services referred to in Article 158 CPV codes 75121000-0, 75122000-7, 75123000-4, 79622000-0, 79624000-4,
An organization referred to in paragraph 1^er meets all the following conditions:
1° The purpose of the mission is to carry out a public service mission related to the provision of the services referred to in paragraph 1^er;
2° its profit is reinvested in order to reach the objective of the organization. In the event of distribution or redistribution of profits, it should be based on participatory principles;
3° the management or ownership structures of the organization that executes the market are based on employee ownership or participatory principles or require the active participation of employees, users or stakeholders;
4° the organization has not been awarded a contract by the relevant procuring authority for the services covered by this article in the previous three years.
The maximum market time is not more than three years.
The notice of contract or pre-information refers to this section.
CHAPTER 7. - Low public markets
Provisions applicable to low-value public procurement
Art. 162. Public contracts referred to in Article 94, paragraph 1^er, 1°, whose estimated amount is less than 30,000 euros are only subject to:
1° to the provisions of title 1^erexcept articles 12 and 14;
2° to the application field provisions ratione personae and ratione materiae referred to in Chapter 1^er Title 3.
These contracts may be concluded by accepted invoice.
PART 4. - Governance
Monitoring of application
Art. 163. § 1^er. Except as otherwise provided, this title applies to the award by the adjudicators referred to in section 2, 5°, of public procurement in an amount equal to or greater than the thresholds set for European advertising.
§ 2. The King designates 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 public procurement.
§ 3. The contact point is responsible for establishing no later than 18 April 2017 and every three years thereafter, a report for the European Commission that includes the results of poll-based controls on the application of the rules on public procurement and information on:
1° the institutional organization and the control bodies concerned;
2° the prevention, detection and appropriate reporting of cases of fraud, corruption, conflict of interest and other serious irregularities in public procurement;
3° 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;
4° the level of participation of small and medium-sized enterprises, below "P.M.E.", in procurement procedures referred to in paragraph 1^er;
5° the provision of information on the application of laws, decrees and circulars relating to public procurement, including P.M.E., and their interpretation;
6° the provision of support or instruments to enable buyers to plan and conduct procurement procedures.
For the purposes of paragraph 1^er"P.M.E." 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.
The first report relates to the period from the coming into force of this Act until December 31, 2016 and then to successive periods of three years.
§ 4. The King determines the types of results of the survey control operations that can be considered and whose results can be requested by the point of contact referred to in paragraph 2 to the adjudicators under the federal state.
The King may also specify the information that may be requested by the point of contact referred to in paragraph 2 to the adjudicators referred to in paragraph 1^er.
§ 5. Community and regional governments shall transmit to the point of contact no later than 15 March 2017 and every 3 years thereafter, 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 competence any information or useful information.
§ 6. The contact point is responsible for publishing the results of the control operations via appropriate means of information.
§ 7. Where appropriate, community and regional governments shall provide the point of contact with information on the practical implementation of strategic public procurement policies.
§ 8. Without prejudice to the provisions of the statutes, decrees and orders relating to the archives, adjudicators shall, at least for a period of ten years from the date of conclusion of the contract and in any event as long as the short warranty period, keep copies of all contracts concluded with a value equal to or greater than:
1° 1.000.000 euros for public procurement of supplies or services;
2° 10.000.000 euros with respect to public works markets.
Adjudicators provide access to these markets; However, access to specific documents or information elements may be denied to the extent and under the conditions provided for in European Union legislation or the laws, decrees and orders applicable to access to administrative documents and data protection.
Information to be retained
Art. 164. § 1^er. For any market, framework agreement or dynamic acquisition system within the scope of title 2, equal to or greater than the threshold for European advertising, the procuring authorities shall keep in writing at least the following information:
1° the name and address of the procuring power, the object and the amount of the market, the framework agreement or the dynamic acquisition system;
2° where applicable, the results of the selection and/or reduction of the number of candidates, offers or solutions provided for in sections 79 and 80, namely:
(a) the name of the selected candidates or bidders and the grounds of law and fact justifying their selection;
(b) the name of rejected candidates or bidders and the grounds for law and de facto their eviction;
3° the grounds for law and de facto rejection of offers deemed abnormally low;
4° the name of the successful bidder and the grounds for law and fact of the choice of the offer, including the characteristics and benefits of the offer, and, if known, the share of the contract or framework agreement that the successful bidder intends to subcontract to third parties; and if this information is known at this stage, the names of the contractors of the principal contractor, if any;
5° with respect to competitive procedures with negotiation and competitive dialogues, the grounds for law and fact which justify or permit the use of these procedures in the situations provided for in Articles 38, § 1^er, and 39 § 1^er ;
6° for proceedings negotiated without prior publication, the grounds for law and fact which justify or permit the use of this procedure in the circumstances referred to in article 42, § 1^er;
7° where applicable, the grounds for law and fact for which the procuring authority has waived a contract, a framework agreement or a dynamic acquisition system;
8° where applicable, the reasons why means of communication other than electronic means were used for bidding;
9° where applicable, the conflicts of interest identified and the measures taken accordingly;
10° where applicable, the appropriate measures referred to in Article 52, § 1^er;
11° the reasons why the market was not divided into lots.
The information referred to in paragraph 1^er shall not be available for contracts based on framework agreements where they are entered into in accordance with Article 43, § 4, or Article 43, § 5, 2°.
To the extent that the notice of contract award established under section 62 or section 90, § 3, contains the information required in paragraph 1^er, the procuring authorities may refer to the notice.
§ 2. For any market or framework agreement within the scope of title 3, equal to or greater than the threshold for European advertising, and whenever a dynamic procurement system is in place, the procuring entities shall keep in writing sufficient information based on the grounds of law and fact that would later justify decisions made in relation to:
1 the qualification or selection of economic operators and the award of markets;
2° the use of negotiated procedures without prior competition in accordance with Article 124;
3° the non-implementation of the provisions of Chapters 3 to 5 of Title 3 under the exemptions provided for in Chapter 1^er the same title;
4° where applicable, the reasons why means of communication other than electronic means were used for bidding;
5° where applicable, the appropriate measures referred to in Article 52, § 1^er.
To the extent that the notice of contract award established in accordance with Article 143 or Article 160, § 3, contains the information required in this paragraph, procuring entities may refer to the notice.
§ 3. The information referred to in paragraphs 1^er and 2, or their main elements, shall, at their request, be communicated to the point of contact referred to in Article 163, § 2, to the governments of the community or region, or to the authorities concerned.
§ 4. Adjudicators keep track of all procurement procedures, whether or not they are conducted by electronic means. To this end, they ensure that sufficient documents are kept to justify decisions taken at all stages of the procurement process, including documents relating to trade with economic operators and internal deliberations, preparation of market documents, dialogue or negotiation, where appropriate, selection and award of the market. These documents are kept at least for a period of ten years from the date of conclusion of the contract and in any event until the warranty period expires, without prejudice to the provisions of the archives laws, decrees and orders.
This paragraph is applicable for each market or framework agreement that falls under the scope of title 2 or 3, as well as for markets for which the value is less than the thresholds set for European advertising. This paragraph is, however, not applicable to low-value public procurement under Chapter 7 of Title 2 or Chapter 7 of Title 3.
Statistical obligations
Art. 165. § 1^er. The adjudicators shall transmit to the point of contact referred to in Article 163, § 2, upon request, any statistical information and any data necessary for the development of statistics relating to public procurement, the estimated amount equal to or greater than the thresholds for European advertising.
§ 2. On or before March 15, 2017, and every three years thereafter, the adjudicators shall transmit to the point of contact referred to in Article 163, § 2, the total value of the contracts of less than the thresholds for European advertising. The total value of these markets must be disaggregated as these are labour markets, supplies or services.
The data transmitted covers the previous three years.
Administrative cooperation
Art. 166. The competent authorities provide, each with respect to it, the information requested under the internal market information system, below IMI, established by Regulation (EU) No 1024/2012 of the European Parliament and of the Council of 25 October 2012 concerning administrative cooperation through the information system of the internal market and repealing Commission decision 2008/49/EC of 53 sectors for the purpose of exchanging relevant information,^er3°, which must be read in combination with articles 55, 77 and 84.
At the request of a government of a community or region, or the point of contact referred to in Article 163, § 2, the procuring parties shall provide the information referred to in paragraph 1^er.
PART 5. - Final, amending, abrogatory and various provisions
CHAPTER 1^er. - Miscellaneous provisions
Calculation of time limits
Art. 167. 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.
Energy efficiency
Art. 168. § 1^er. This section is only applicable to public procurement, competitions and framework agreements that fall within the scope of title 2 of this Act, as well as to public procurement, competitions and framework agreements that are excluded from the material scope of this title, following the implementation of the provisions of subsection 3 of section 2 of Chapter I of Title 2.
§ 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 procurement authorities examine, when they enter service markets, 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. 169. Within the limits of its responsibilities, each Minister is competent to make decisions regarding the procurement and enforcement of the contracts of the federal authority and the agencies that fall under its authority.
For persons of public law other than those referred to in paragraph 1^er, powers relating to procurement and enforcement of contracts are exercised by the competent authorities and bodies, under the provisions of a law, decree, order, regulatory or statutory provision governing them.
The powers conferred under subparagraphs 1^er and 2 may, for the competent authorities and bodies referred to in those paragraphs and under federal authority, be delegated within the limits established by the King, except where a particular legal provision regulates that delegation.
Council of Ministers
Art. 170. Royal decrees under or under this Act shall be deliberated in the Council of Ministers.
Enabling the King
Art. 171. The King may take the necessary measures, including the repeal, addition, modification or replacement of legal provisions, to ensure the transfer of the mandatory provisions resulting from the Treaty on the Functioning of the European Union and the international acts taken under it and concerning the public markets covered by 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 on the Functioning of the European Union and its international acts and concerning public procurement and labour, supplies and services markets covered by this Act.
The measures set out in the previous paragraph are subject to legislative confirmation within two years of their entry into force.
Art. 172. 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
Amendment of the Act of 2 August 2002 on combating delay in payment in commercial transactions
Art. 173. In section 3 of the Act of 2 August 2002 on combating delay in payment in commercial transactions, as amended by the Royal Decree of 19 December 2010 and by the Act of 22 November 2013, paragraph 3 is supplemented by the words:
", subject to the regulations on public procurement and concessions with respect to rules of control and payment, as provided by the general rules of enforcement".
Repeal of Article 3/1 of the Act of 2 August 2002 concerning the fight against delay in payment in commercial transactions
Art. 174. Section 3/1 of the Act, inserted by the Act of November 22, 2013, is repealed.
Amendments to the Defence and Security Act.
Art. 175. Section 2 of the Act of 13 August 2011 on public procurement and certain contracts of work, defence and security supplies and services, 2° and 3° are replaced by the following:
"2° public enterprise: any business carried out under sections 96 to 102 of the Act of 17 June 2016. relating to public procurement on which the procuring authorities may directly or indirectly exert a dominant influence on the property, financial participation or the rules governing it. The dominant influence is presumed when they, directly or indirectly, affect the company:
(a) hold the majority of the capital of the enterprise; or
(b) have the 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;
3rd person with special or exclusive rights: the person carrying on an activity under 3 of the Act of 17 June 2016. on public procurement and with special or exclusive rights. 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 reserving an activity referred to in title 3 to one or more entities and substantially affecting the ability of other entities to carry out 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 procedures with prior competition, pursuant to this Act, to the Act of 17 June 2016. relating to public procurement and the Concessions Act of 17 June 2016;
b) procedures under other legal acts of the European Union, listed in Schedule IV of the Act of 17 June 2016. on public procurement, which ensures sufficient prior transparency for the granting of authorizations on the basis of objective criteria.
Art. 176. In sections 2, 4 and 37 of the same law the words "adjudicative entity" are replaced by the words "special or exclusive rights holders", the words "adjudicative entities" are replaced by the words "persons enjoying special or exclusive rights" and the words "adjudicator entities" replaced by the words "person(s) enjoying special or exclusive rights".
Art. 177. In the same law the title 3 "Marches concluded by adjudicators" is replaced by the following title:
"Titre 3 - Markets concluded by people enjoying special or exclusive rights".
Art. 178. In the same Act, section 4/1 is added, as follows:
"Art. 4/1. In the case of joint procurement involving both acquisitions falling under the scope of this Act or under Article 346 of the Treaty relating to the Functioning of the European Union or under one of the cases referred to in Article 15, paragraph 2, and purchases falling under title 2 of the Act of 17 June 2016 relating to public procurement, Article 24 of the latter Act is applicable.
In the case of mixed procurement involving both acquisitions falling under the scope of this Act or under Article 346 of the Treaty relating to the Functioning of the European Union, or under one of the cases referred to in Article 15, paragraph 2, and to purchases falling under heading 3 of the Act of 17 June 2016 relating to public procurement, Articles 106 and 107 of the latter Act are applicable."
Art. 179. In section 13 of the Act, the words "seen under title III of the Act of 15 June 2006" are replaced by the words "seen under section 94, 1°, b, of the Act of 17 June 2016 on public procurement".
Art. 180. Section 15 of the Act is replaced as follows:
"Art. 15. This Act applies to past public markets, which relate to:
1° the supply of military equipment, including their spare parts, components, and/or sub-assemblies;
2° the supply of sensitive equipment, including their spare parts, components, and/or sub-assemblies;
3° of works, supplies and services directly related to equipment referred to in 1° and 2° for all or part of its life cycle;
4° of work and services for specific military purposes with sensitive work and services.
In the following cases, only title 3/1 is applied:
1° if and to the extent that the protection of the essential interests of the security of the Kingdom cannot be guaranteed by less intrusive measures, for example by imposing conditions to protect the confidentiality of information that the procuring power makes available in accordance with Titles 2 and 3 of this Law;
2° if and to the extent that the application of the provisions of heading 2 and 3 of this Act would require the Kingdom to provide information that it would consider disclosure contrary to the essential interests of its security;
3° where the procurement and enforcement of the public market 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 it is established that the protection of the essential interests concerned cannot be guaranteed by less intrusive measures, such as those referred to in 1°;
4° where Article 346 of the Treaty on the Functioning of the European Union is applicable.".
Art. 181. Section 16 of the Act is repealed.
Art. 182. In article 22, paragraph 3, of the Act, the sentence "It may subject to specific rules of procurement to which Article 346, 1, b, of the Treaty on the Functioning of the European Union applies." is repealed.
Art. 183. In section 25, 1°, the provision under (b) is repealed.
Art. 184. Paragraph 2 is repealed in section 35 of the Act.
Art. 185. Section 40/1 of the Act is replaced as follows:
"Art. 40/1. § 1^er. 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, "acquisition of a building" means the rental and acquisition of real rights on a building.
The obligation referred to in paragraph 1^er does not apply:
1° when its application conflicts with nature and the primary objective of the activities of the armed forces;
2° to military equipment supply markets referred to in Articles 3, 16° and 15, 1°.
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 procurement authorities examine, when they enter service markets, the possibility of entering into long-term energy performance contracts that ensure long-term energy savings.
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".
§ 2. The King sets out the additional rules of paragraph 1^er. To this end, the King sets out the minimum requirements for energy performance for the products, services and buildings it determines.".
Art. 186. In section 43 of the same Act, the words "adjudicative proceedings as well as the procuring powers and public enterprises referred to in section 72 of the Act of 15 June 2006" are replaced by the words "people enjoying special and exclusive rights referred to in section 93, 2°, b, and public enterprises and procuring powers referred to in section 93, 2°, a, and c, in that section".
Art. 187. In the same law a title 3/1 is inserted, entitled "Titre 3/1 - Excluded markets on the basis of essential security interests or on the basis of Article 346 of the Treaty on the Functioning of the European Union".
Art. 188. Under 3/1, inserted by section 187, an article 43/1 is inserted, as follows:
"Art. 43/1. The King may make applicable rules of procurement, control and enforcement specific to the public procurement referred to in Article 15, paragraph 2.".
Amendments to the Act of 15 June 2006 on public procurement and certain contracts of work, supplies and services
Art. 189. Section 41/1 of the Law 15 June 2006 on public procurement and certain contracts of work, supplies and services, inserted by the law of 15 May 2014, the following amendments are made:
1° paragraph 1^erParagraph 1^er, is replaced by the following:
"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. ";
2° a paragraph written as follows is inserted between subparagraphs 1^er and 2:
"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. ";
Paragraph 2, paragraph 2, is repealed.
Art. 190. The Law on Public Procurement and Certain Contracts of Work, Supplies and Services of June 15, 2006 is repealed, with the exception of section 3, 12, and title II, chapter IV, section III, subsection V, of the Act of June 15, 2006.
Amendments to the Royal Decree of July 13, 2014 relating to energy efficiency requirements in certain public markets relating to the acquisition of products, services and buildings
Art. 191. In the Royal Decree of July 13, 2014 on energy efficiency requirements in certain public markets for the acquisition of products, services and buildings, the following amendments are made:
1° to Article 2, the definition under 8° of "central governments" is repealed;
2° to Article 3, the words "the lowest" are repealed.
Coordination
Art. 192. The King may coordinate the provisions of this Act and the Act of 13 August 2011 on public procurement and certain contracts of work, supplies and services in the areas of defence and security, and the Act of 17 June 2013 on the grounds, information and remedies for public procurement and certain contracts of work, supplies and services and the provisions that would have expressly or implicitly amended them at the time of coordination.
To this end, He may:
1° amend the order, numbering and, in general, the presentation of the provisions to be coordinated;
2° amend the references contained in the provisions to be coordinated with a view to aligning them with the new numbering;
3° amend the drafting of the provisions to be coordinated in order to ensure their consistency and to unify the terminology without prejudice to the principles set out in these provisions.
The co-ordinations will bear the following title: "Les relatives aux marchés publics, contact le ...".
They will come into force on the date of their confirmation by law.
CHAPTER 3. - Entry into force
Entry into force
Art. 193. The King shall determine the date on which this Act comes into force, with the exception of:
1° of this article, which comes into force on the day of the publication of this Act to the Belgian Monitor;
2° of Articles 185, 189 and 191, which come into force on the tenth day following the publication of this Act to the Belgian Monitor for Public Procurement, Contests and Framework Agreements published or that should have been published from that date in the Official Journal of the European Union or the Bulletin of Adjudications as well as for public procurement, competitions and framework agreements, for which, in the absence of an obligation to publish, the invitation to
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) Documents of the House of Representatives:
54-1541 - 2015/2016 :
001: Bill.
002 to 010 :.Amendments.
011: Report.
012: Text adopted by the Commission
013 and 014 :.Amendments.
015: Annexes
016 :.Amendments.
017: Text adopted in plenary and subject to Royal Assent.
See also:
Full report: 12 May 2016.

For the consultation of the table, see image