Corrective Royal Decree in the public procurement regulations  - Jeff Eaton (CC BY-SA 2.0)
Photo: Jeff Eaton (CC BY-SA 2.0)

- By Equal team

Corrective Royal Decree in the public procurement regulations

On 15 April 2018, a corrective Royal Decree was adopted with a view to correcting a number of typing errors in the public procurement regulations.

Here is a non-exhaustive list of the changes made to the texts in force:

  1. In the law of 17 June 2013 on substantiation, information and legal remedies, certain amounts have been adjusted to bring them into line with the thresholds set by the Royal Decree of 18 April 2017:
    • 8,500 euros to 30,000 euros
    • 85,000 euros to 144,000 euros
    • 170,000 euros to 443,000 euros
  2. In the Royal Decree of 14 January 2013 on the fulfilment of public procurement contracts (RGE [règles générales d'exécution, general fulfilment rules]),
    • Concerning the release of the guarantee deposit, if shortcomings are established, as provided for in article 44 RGE, it should be recalled that:

i. the body with which the guarantee deposit was set up cannot demand the contractor’s prior consent if the latter has not asserted its defence within 15 days of the report of shortcomings being sent.

ii. however, if the contractor has asserted its defence within this period, this defence, as well as confirmation that the conditions set in Article 44, §2 RGE have been met, must be taken into consideration before automatic collection.

    • The contractor cannot demand compensation in the case of suspension ordered by the contracting authority where the suspension is due to other circumstances outside the contracting authority’s control and which, in the contracting authority’s opinion, prevent the continued fulfilment of the contract at that time.
    • Articles 38/1 and 38/2 RGE shall henceforth also apply to contracts that were published (or should have published) before 30 June 2017, as well as to contracts for which the call for bids was issued before this date in the absence of an obligation to publish them in advance. This modification fills the gap caused by the change to the regulations. In fact, by shifting the possibility to increase the contract value in the case of additional works, supplies and services, as well as in the case of events not foreseeable by law (former Article 26 of the law of 15 June 2006) over to the implementing Royal Decree (RGE), the lawmaker had lost sight of the fact that this specific possibility to modify contracts would disappear altogether for all contracts started before 30 June 2017 that were still underway.

Note that Article 38/1 RGE (additional works, supplies and services) comes into effect on 30 June 2017. This means that for a contract started before 30 June 2017, a “regularisation” of the modifications made between 30 June 2017 and 28 April 2018 (10th day following publication of the corrective Royal Decree) based on Article 38/1 RGE will be authorised. Modifications based on Article 38/2 (unforeseeable events), in the context of the fulfilment of contracts started before 30 June 2017, are not possible until 28 April 2018.

3. As for the Royal Decree of 17 April 2017 on the awarding of public contracts in traditional sectors, it should be noted that bid amounts shall be valued inclusive of VAT where that VAT represents a cost to the contracting authority.

Unless specified otherwise, these various modifications shall come into force for contracts started (i.e. published or for which a call for bids has been made) from 28 April 2018 onwards.

Associated areas of specialisation: Public procurement and PPP


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