Public procurement contract regulations “repaired” by Council of Ministers

Public procurement contract regulations “repaired” by Council of Ministers

On 21 February 2014, the Belgian Official Journal published the Royal Decree of 7 February 2014 amending several Royal Decrees in implementation of the Act on public procurement contracts and certain contracts for works, supplies and services of 15 June 2006 as well as of the Act of 13 August 2011 on public procurement contracts and certain contracts for works, supplies and services in the defence and security area.
 
This so-called "Repair Royal Decree" adapts the Royal Decrees that were enacted in the period 2011-2013 in order to permit the Public Procurement Contracts Act of 15 June 2006 to enter into force. The new amendments are primarily intended to respond to a number of practical changes that have arisen between 2011 and the present.
 
For example, the Repair Royal Decree introduces the new European announcement models. To promote administrative simplification for investigating the personal situation of candidate-tenderers, the principle of the declaration on honour is applied. Concretely it henceforth applies in procedures that take place in a single phase (i.e. without preliminary selection) that the submission of a tender must be seen as a declaration on honour that one does not fall into any of the enumerated exclusion cases, provided that these data are accessible electronically for the contracting authority (e.g. NSSO and tax information).
 
In addition, the Repair Royal Decree seeks to remedy a number of formal and substantive defects and eliminate several points that were previously unclear. For example, the Repair Royal Decree clarifies that departures in tenders from the provisions of the contract documents concerning the prices, periods and technical specifications do not automatically lead to a substantial irregularity of the tenders. This is only the case to the extent that the aforementioned provisions have an essential character. When this essential character is absent, there is thus a non-substantial irregularity.
 
The concepts of "substantial irregularity" and "non-substantial irregularity" are also literally named for the first time in the Repair Royal Decree. In addition, the Repair Royal Decree interprets the consequences of these two distinct forms of irregularity of tenders. The tender is invalid and is consequently excluded if it is substantially irregular. In that case the contracting authority has no discretionary latitude on the sanction for the irregularity that is committed. By contrast, when the irregularity of the tender is non-substantial because it does not relate to the violation of an essential provision or formal rule, the contracting authority can declare the tender to be invalid. However, it is not obliged to do so, and therefore possesses a margin of appreciation.
 
Certain delicate practical points such as the payment period, the verification period and the manner in which contracts can be amended have not been resolved with this Repair Royal Decree, and may be addressed in a following round of repairs.
 
To be continued…