Yes. Candidates who are not excluded on the basis of one of the mandatory or optional grounds for exclusion and who meet the selection criteria determined by the contracting authority, have the right to submit a bid which will be evaluated in light of the contract award criteria (see 6.a.). The Public Procurement Act lists several mandatory and optional grounds for exclusion. Regarding these as well as the possibility to "self-clean", see 4.c. and 4.d.

The selection criteria which the contracting authority must stipulate in the contract notice or tender documents, can be distinguished into three groups. They need to relate to and be proportionate to the subject matter of the contract.

• First, selection criteria may relate to the suitability of a candidate to pursue the professional activity, such as holding the required license, membership of a professional association or trade registry registration.
• Secondly, selection criteria may require from a candidate to prove his economic and financial capacity to perform the contract, such as submitting certain annual turnover or other accounting information or enjoying an appropriate level of risk indemnity insurance.
• Thirdly, selection criteria may relate to the technical and professional ability to perform the contract, such as possessing the necessary human and technical resources and demonstrating the required experience on the basis of references from past contracts

Subject to certain conditions, candidates may rely on the capabilities of third parties in order to establish their required economic and financial capacity as well as their technical and professional ability.

The new Public Procurement Act makes it mandatory to use the European Single Procurement Document ("ESPD"), which is essentially a self-declaration by the candidate that no exclusion ground applies to him and that he meets all applicable selection criteria. The contracting authority needs to accept this as preliminary proof, but may ask candidates, at any stage, to submit all or parts of the supporting evidence. Contracting authorities are also required to use as much as possible the European e-Certis database to verify certificates.

Lastly, contracting authorities may limit the number of otherwise qualified candidates that they will invite to participate in the tender stage of a restricted procedure, of a competitive negotiated procedure, of a competitive dialogue or of an innovation partnership. This reduction of candidates needs to be clearly indicated in the contract notice together with the objective and non-discriminatory criteria or rules that will be used to this end.

Yes. The Royal Decree of 18 April 2017 includes a "qualification system", which a contracting authority may organize for similar procurement contracts. After an announcement is published, potential candidates may at all times request to be admitted to the qualification system by providing proof that they meet the selection criteria. Once admitted to the qualification system, a candidate is eligible for all contracts based on the qualification system.

No. Blacklists specifically related to public procurement do not exist. But to the extent certain candidates are in a situation corresponding with one or more exclusion grounds, this will, of course, be visible in some databases such as the national criminal register.

Based on Directive 2014/24/EU, a "corrective measures" exemption has been introduced in Belgian public procurement law as a self-cleaning mechanism.

Candidates subject to a mandatory or optional grounds for exclusion are indeed offered the possibility to prove that they have taken sufficient corrective measures in order to remedy their untrustworthiness. To that end, the candidate needs to prove that (i) it has compensated or undertaken to compensate all damages caused by its misconduct, (ii) it has clarified the facts and circumstances comprehensively by actively collaborating with the investigating authorities, and (iii) it has taken adequate preventive measures.

These corrective measures are evaluated by the contracting authority, taking into account the seriousness of the misconduct, and if they are deemed sufficient, the concerned candidate shall no longer be excluded from the procurement procedure.

Possibly yes. The contracting authority needs to take appropriate measures to prevent the distortion of competition resulting from the involvement of a potential candidate in the preparation of the public procurement procedure (i.e. research, experimentation, study or development).

The contracting authority can decide to share with the other candidates all relevant information exchanged during the involvement and/or fix adequate time limits for submitting tenders. Only if such measures do not suffice to remediate the distortion of competition, is the contracting authority allowed to exclude the economic operator that participated to the preparatory phase of that procurement. However, in such instance the operator has the opportunity to justify that its participation to the preparatory phase will not grant it an advantage affecting or distorting the normal conditions of competition.

Furthermore, specific rules apply to the conflicts of interest resulting from connections between public officials involved in the tender proceedings and one or more potential candidates, as well as the conflicts of interest resulting from the employment by a potential candidate of an individual who has worked during the last two years for the contracting authority.

As a general rule, candidates have the right to form consortia. Both natural persons and all types of companies and associations, including temporary associations, have a right to bid. The contracting authority can, however, require that the contractor, possibly a consortium, assumes a specific legal form after the award of the contract, if this would be necessary for the proper performance of the contract. In addition, the contracting authority can clarify in the contract notice or tender documents how consortia can meet certain selection criteria. To the extent that other conditions would be imposed on consortia than those applicable to individual bidders, this differential treatment needs to be based on objective grounds and be proportionate.

Lastly, it is worth noting note that it is generally not allowed to submit tenders simultaneously as a member of a consortium and on an individual basis.

Candidates also have the right to use subcontractors but this right can be restricted.

The possibility for one or more members to leave a consortium during the procurement procedure is generally regulated by the tender documents.

As a general rule, leaving members of a consortium will not be allowed to participate to the tender on an individual basis as they need to comply with time limits for submitting candidacies or tenders and, as mentioned under 4.f., it is in principle forbidden to participate in a procurement procedure simultaneously as part of a consortium and on an individual basis.

However, the recent jurisprudence of the EU Court of Justice that, if a consortium is dissolved after submission of a tender but before the award decision as a consequence of the bankruptcy of one of its constituting members, the contracting authority may allow the remaining member to proceed in the procurement process alone, if it individually meets all selection criteria and if this does not affect the competitive position of other candidates.

Furthermore, in 2016, the Belgian Council of State allowed a member of a consortium, which was confronted with the unwillingness of the other constituting member of the consortium to proceed, to submit the BAFO on behalf of another consortium, newly formed with a different company. This was motivated on the basis of several very case-specific considerations, most importantly, the fact that there was only one other tenderer and that competition would disappear if a changed consortium could not proceed.

Separate legal entities which are nevertheless related, are in principle entitled to simultaneously participate in a procurement procedure. However, it is forbidden for them to conclude any type of agreement which violates antitrust law or to act in a way which could distort normal competitive circumstances. This is not only safeguarded by provisions of general competition law, but also explicitly imposed in the Public Procurement Act as an obligation for all bidders.

There are no special regulations or explicit requirements relating to foreign bidders.

Only businesses registered in the EU automatically benefit in principle from the right to participate in Belgian public procurement procedures. In general, contracting authorities cannot discriminate against EU businesses on the basis of nationality. In particular, they cannot refuse supporting documents issued in another country when these may offer similar guarantees and they cannot exclusively require specific brands, trademarks or patents without accepting equivalents.

Potential candidates from outside the EU only have access to Belgian public procurement procedures if the contracting authority and the type of contract fall within the scope of application of the WTO GPA (see 1.b.) or if they enjoy this right on the basis of unilateral or multilateral agreements between the EU, Belgium or a Belgian Region or Community, on the one hand, and their country, on the other hand.