Public procurement news for Walloon municipalities!

This amendment follows the judgment of the Council of State dated 1 April 2015, whereby that court had restricted the possibility of delegation of power by the municipal council to the municipal college for procurements related to management of the municipality (regular budget). In this judgment, the Council of State decided that “the concept of ‘daily management’ was not defined when this provision was drafted (…). In the absence of legal precision, these terms were given their usual meaning either under the action of managing, daily, what occurs every day, or that which is subject to change from one day to the next. As this is a provision that grants delegation or the possibility of delegation, the aforementioned Article L1222-3 is to be strictly interpreted, since it deviates from the normal exercising of powers within a municipality.”

Note the following from this new text:

• the municipal council may still delegate its powers to the municipal college for procurements financed by the regular budget. However, the condition under which these procurements must relate to the daily management of the municipality is deleted in order to respond to the aforementioned case law (Article L1222-3, paragraph 2, subparagraph 1);
• in the case of a negotiated procedure with or without publicity (or in the case of a “competitive procedure with negotiation” according to the terms of the new Directive having yet to be transposed), the municipal college may amend the conditions of the procurement or concession, without having to obtain the municipal council’s approval for any such amendments prior to awarding the contract (Article L1222-4, paragraph 1, subparagraph 2). However, it should be noted that these negotiations may not concern a substantial element of the contract, nor modify its general structure;
• there are several additional options for delegation.

The exercising of local powers will show us whether the objective pursued by this legislation will be fulfilled, namely to facilitate decision-making, particularly for a whole series of public procurements requiring expedition, without removing the municipal council’s powers with respect to major public contracts.