3. Procurement Procedures
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3. Procurement Procedures Start Comparison
a. What procurement procedures can be followed?

In accordance with Directive 2014/24/EU, contracting authorities may opt for different contract award procedures.

  • The open procedure (openbare procedure/procédure ouverte), in which all interested candidates may submit a tender in response to a call for competition, is always allowed;
  • The restricted procedure (niet-openbare procedure/procédure restreinte), is also always allowed. During the first stage, all interested candidates may submit a request to participate in response to a call for competition and the contracting authority subsequently selects suitable candidates for the second stage. During the second stage, the selected candidates can submit their tenders and the contracting authority subsequently makes an award decision.
  • The competitive negotiated procedure (mededingingsprocedure met onderhandeling/procédure concurrentielle avec négociation) is initially similar to the restricted procedure. However, after the selected candidates have submitted their initial tenders, these can form the basis of negotiations between the contracting authority and the candidates, which allows much more flexibility than the restricted procedure. Multiple rounds of negotiation with updated offers and elimination of certain candidates, are possible.
  • The choice for the competitive procedure with negotiation needs to be motivated on the basis of one or more regulatory criteria. However, these criteria have been formulated in such a broad way that this procedure can now be applied for all but the truly standard procurement contracts with a value above certain minimum thresholds.
  • The simplified negotiated procedure with prior publication (vereenvoudigde onderhandelingsprocedure met voorafgaande bekendmaking/procédure négociée directe avec publication préalable) is similar to the competitive negotiated procedure but it does not have a separate selection stage. All interested candidates immediately submit their bid on which basis negotiations can start. Several rounds of negotiations are possible, but only if they were foreseen in the original call for tenders.
  • The simplified negotiated procedure with prior publication is allowed for supply and services contracts with an estimated value below the European thresholds (see 1.b) or for works contracts with an estimated value below EUR 750,000.
  • The competitive dialogue (concurrentiegerichte dialoog/dialogue compétitif) is also similar to the competitive negotiated procedure, but instead of starting negotiations regarding a predetermined contract, the selected candidates enter into a dialogue with the contracting authority in order to develop one or more solutions which can satisfy the needs of the contracting authority. When the contracting authority has identified the solution(s) that are capable of meeting its needs, the candidates at stake are invited to submit a tender on the basis of their solution.
  • The competitive dialogue is allowed on the basis of the same criteria as the competitive negotiated procedure, with the exception of the criteria concerning maximum thresholds for the estimated contract value.
  • The innovation partnership (innovatiepartnerschap/partenariat d'innovation) is a multi-staged procedure which allows the combination of research and development with subsequent procurement if the developed innovative services, supplies or works would meet predefined performance and maximum cost standards.
  • If the contract value is less than EUR 135,000 or if certain other conditions are fulfilled, it is possible to award a contract on the basis of a negotiated procedure without prior publication (onderhandelingsprocedure zonder voorafgaande bekendmaking/procédure négociée sans publication préalable), which is further discussed under 7.a.

A large group of service contracts with a lower need for competitive award procedures, the so-called "social and other specific services", can be at all times awarded on the basis of the simplified negotiation procedure with prior publication and on the basis of the negotiation procedure without prior publication if the estimated contract value is less than EUR 750,000.

b. What status do electronic means/procedures have?

In Belgium, the existing e-procurement and e-notification platforms are already widely used by contracting authorities.

On the basis of the new Public Procurement Act, it is now mandatory to use electronic communication for all communications, submissions and sharing of documents during a tender procedure. It is only still possible to use non-electronic communication and physical methods of submitting and sharing documents and objects where a contract with an estimated value below the European thresholds is awarded on the basis of a negotiated procedure without prior publication, or if one of the limited regulatory exceptions can be invoked.

Furthermore, the following procurement methods and tools are always electronic:

  • the dynamic purchasing system is an electronic process for procuring commonly used works, supplies or services, which are widely available on the market and the characteristics of which meet the contracting authority's requirements; it is open during its period of validity to any potential candidate that satisfies the selection criteria;
  • electronic auctions can be used for ranking prices or certain elements of tenders or for procuring under a multi-party framework contract;
  • electronic catalogues are a way for presenting (parts of) tenders and updates of catalogues can be used as an additional method for procuring under a multi-party framework contract.
c. Where are contract notices, i.e. calls for bid, published?

Contract notices published at EU level are available in the TED-database, which makes the public procurement supplement to the Official Journal of the EU accessible online: http://ted.europa.eu/TED/main/HomePage.do

Contract notices are always published at the national level in the Bulletin der Aanbestedingen/Bulletin Officiel des Adjudications, which is accessible online on the e-Notification platform: https://enot.publicprocurement.be/changeLanguage.do?language=en-GB

c. Can certain prospective bidders be excluded from the competition?

Yes. Before a contracting authority evaluates a candidate and its bid in light of the selection and award criteria, it needs to verify whether or not the bidder needs to be or could be excluded.

The Public Procurement Act lists several mandatory grounds for exclusion, such as convictions for certain very serious crimes, convictions for various economic crimes or failures to pay certain amounts of taxes or social security contributions. The mandatory grounds are applicable during a term of 5 years starting on the date of the definitive conviction for such offenses.

The Public Procurement Act also establishes several optional grounds which allow a contracting authority to choose whether or not to exclude concerned candidate(s), such as violations of environmental or employment law, insolvency, inadequate performance of a previous public procurement contract, complicity in antitrust violations or supplying misleading information. The contracting authority needs to apply these exclusion grounds in accordance with the fundamental principles of public procurement law. And they can only be applied during a term of three years starting from the date of the concerned infringement.