Ready for the new regulation relating to public procurements?

Here is a summary of the main new features of the Royal Decree of April 18, 2017 relating to the awarding of public procurements in traditional sectors :

• First of all, the increase in the threshold for recourse to the negotiated procedure without prior publication: the current threshold of €85,000 excluding VAT is raised to €135,000 excluding VAT (Article 90). As a reminder, low-amount contracts (stated on a simple accepted invoice) increase from €8,500 excluding VAT to €30,000 excluding VAT.

• In a negotiated procedure without prior publication, any unsolicited bid must, in principle, be rejected, unless expressly justified (Article 93). This principle differs from the current case law of the Council of State.

• Corporate and tax debts must be verified within 20 days following the deadline for the submission of applications for financing or bids, via TELEMARC. Currently, verification must be carried out within 48 hours, only for tax debts (Articles 62 and 63).
  

• Like the current regulation, the selection criterion must be related and proportional to the purpose of the contract and include an appropriate requirement threshold. However, the new decree adds clarification: Article 65 now provides that, if the criterion does not allow a threshold to be set, a second criterion of the same type must be provided, which itself may be subject to a requirement level. This means that the bank statement can no longer be used as a single economic criterion. The regulation also stipulates that the threshold required for turnover reporting cannot be more than twice the estimated value of the contract, whilst curbing this threshold in circumstances validly justified by the contracting authority (Article 67, section 3).

• The revolving door mechanism is now regulated (Article 51).

• Analysis of the regularity of tenders (Articles 75 and 76): this is mandatory for all procedures, therefore including procedures allowing for negotiation. The distinction between the formal and material irregularities is removed. The notion of "substantial" is defined and certain irregularities are presumed substantial.

• Unusual prices (Article 36): the contracting authority is obliged to verify seemingly unusual prices if they are related to significant items. On the contrary, the contracting authority is therefore not obliged to invite a bidder to provide justifications concerning the items of negligible importance. It will also have to invite the bidder to provide written justifications concerning compliance with environmental, social and labour laws. It should also be noted that the calculation of the average of the bids imposing the request for justification of amounts that deviate by at least 15% applies to works contracts, but also to service contracts in a sector that is sensitive to fraud. Moreover, this obligation is applicable when the contract is allocated to the most advantageous bid based on the best price-quality ratio if the weight of the criterion relating to the price represents at least 50% of the total weight of the allocation criteria.

Contracting authorities and economic operators must both be mindful of these new elements for contracts launched as of June 30 this year! What a wonderful way to start the second half of 2017…