Public Procurement In The Classic Sectors - A Further Step Towards A New System

The Belgian authorities have made further steps towards the implementation of a new legislation regarding public procurement, and the implementation of the relevant European directives into Belgian law, by the publication, recently, of two new laws and a royal decree.

Indeed, very recently, a "Royal Decree of 15 July 2011 concerning the award of public procurements in the classic sectors" ("RD") was published in the Belgian Official Gazette, as well as two laws dated 5 August 2011, to amend the Public Procurement Act of 15 June 2006 ("Public Procurement Act"). The date of entry into force of both this Royal Decree and the law of 5 August 2011, has not yet been determined, but its is expected that they will enter into force early 2012, within the framework and together with the Public Procurement Act (of 15 June 2006). The latter provides for a comprehensive reform of regulations on public procurement (the current dating back from 1993) within the classic sectors, and the water, energy, transport and postal services sectors, transposing also the non-mandatory rules of the Directives 2004/17/EC and 2004 /18/EC.

This report brings a brief overview of the key elements in the RD of 15 July 2011 and the law of 5 August 2011, amending and completing the Public Procurement Act (hereafter the "Law"), which are innovative comparing to the former and still current public procurement legislation.

Both, the Law and the RD completely transform the procedures that must be respected for the award of public works contracts, public supply contracts and public service contracts and public works concessions, in the classic sectors (as opposed to the special sectors, i.e. water, energy, transport and postal services), as currently in force by virtue of the royal decree of 8 January 1986. The Law further conforms the Public Procurement Act to amendments that have been enacted since that its publication. Although both acts aim to provide for innovation and clarification, several existing principles and terms are reiterated.

The Law as well as the RD introduce new terminology and its definitions. The RD, on its turn, clarifies the scope of certain important terms. For example, the RD recognizes the validity of market research, if it is provided prior to the initiation of any procurement procedure and does not lead to any kind of pre-negotiations with some enterprises nor does it prevent or distort competition.

Clarification by the RD is given to the term "variant"...