The specifications of the contract contain all the information you need to assess whether your company can take on the contract, to put yourself forward as a candidate and to execute the contract correctly.

Specifically, it will provide you with the following information:

• Subject of the contract: a clear description of the contract, including all technical details and specifications.
• Division into lots: in some cases, a contract is divided into several work packages or categories, usually based on geographical, technical or time criteria. These parts are called lots. The specifications indicate whether your company:
  • can put itself forward for one or more lots;
  • can submit a joint tender, e.g. with a sector partner or a company with a complementary offer of products or services.
• Variants: the contracting authority may ask (or impose on) a candidate to include one or more alternative methods of execution and the corresponding budgets in the tender.
• Options: additional elements of the contract, regarding which it is not (yet) certain whether or they will be executed effectively. The specifications determine whether or not you are required to submit a tender for these options.
• Quantity: does the contract involve a fixed/flat-rate or estimated quantity of goods or services to be rendered?
• Pricing: can you specify a total price, or do you need to break this down and detail each individual cost?
• Selection criteria: which companies are eligible to execute the contract (financial capacity, experience, technical expertise, etc.).
• Tender criteria: based on which criteria and according to which procedure/procedures will the contract be awarded.
• Deadlines: e.g. for the submission of tenders, the evaluation of the applications by the contracting authority, execution of the contract, any required approval by the competent official or minister, etc.
• Procedural requirements: how and in what form the tender must be drawn up, the required documents, certificates or signatures, and through which channel to submit them.
• Legal provisions: rights and obligations of the contracting authority and the supplier, guarantees and any penalty clauses (mainly applied by large policy bodies or institutions that operate within a much stricter framework).

From public broadcasting stations to post-sorting centres and training organisations – contracting authorities in Belgium are as numerous as they are diverse.

The entities that are subject to Belgian legislation on public contracts – jointly called the 'contracting authorities', are highly diverse. Given the complex structure of our state, with several administrative layers, this is not surprising.

Furthermore, their number is growing. Following the legislative amendment of 1 July 2013, educational institutions, hospitals and organisations in the social sector must apply the procedures for public tendering. This means an added potential market for your company.

Who are the contracting authorities?

• The Belgian federal structure  
  • The federal government: the different federal authorities, the Ministry of Defence, institutions for public utilities and social services and public enterprises like Bpost or Belgacom
  • The three regions: the respective policy bodies of the Flemish, Walloon and Brussels Capital regions, but also housing corporations and transport companies
  • The three communities: the administrative bodies of the Flemish, French, and German-speaking communities, media, cultural institutions, regional airports, etc.   
• Local authorities
  • The 10 provinces: administrative entities and policy initiatives at the provincial level, but also provincial development companies and schools.
  • The 589 municipalities: town councils, inter-municipal companies, emergency service areas, police areas, etc.                
• Social profit institutions
  These are legal entities of a non-commercial or non-industrial nature that have been incorporated to meet general public needs. To come within the scope of application of the law, these institutions must be funded for at least 50% with public resources or be under the control or supervision of the government. In practice it mainly concerns:
  • schools, colleges and universities from all education networks (official, subsidised official, and free)
  • hospitals and other organisations in the social sector, such as care facilities or non-profit organisations that offer training courses.

Public contracts are financed with tax money. Consequently, they are subject to a particularly stringent regulatory framework.

A public contract is a contract concluded between a government department or an organisation in the social-profit sector and one or more market parties to provide goods or services for compensation. This is done according to well-defined rules and principles, including for the description, publication and award of the contract.

If your company wants to enter this attractive market it is essential that you familiarise yourself with the – often complex – rules. The main points are listed below:

What types of public contracts are there?

Public contracts roughly break down into three categories, which the contracting authority may combine under certain conditions:

Supply of goods

This category includes all movables that a contracting authority needs for its operations, from post-its to combat helicopters. They can acquire this through purchase, rent, hire-purchase or leasing. The placement or installation of the supplied goods also fall under the contract.

Services 

This type of contract includes both tangible (e.g. maintenance, cleaning, catering, and transport) and intangible services (such as financial services, consulting, legal advice, technical support or training).

This is often combined with the supply of goods, especially if the cost of the services is higher than that of the goods. Consider, for example, an ICT company that supplies software but also provides training and support for hundreds of users.

Public works

This includes designing and executing structural and civil engineering works for a public principal. This may vary from site preparation to large-scale infrastructure projects such as highways, bridges or locks complexes. Good to know: only approved contractors are eligible for such contracts.

What rules and basic principles must public authorities respect?

Contracting authorities finance their operations with tax money, which they have to manage and spend as efficiently as possible. Public contracts are therefore subject to strict rules as set out in a number of Acts and Royal Decrees.

Level playing field

In brief, this legislation obliges the contracting authorities to meet their needs as economically as possible. They have at their disposal a wide range of procedures aimed at keeping costs low by allowing the free market to operate optimally. Of course, real competition is only possible if all candidates are able to compete on an equal footing. Therefore, any contracting authority must follow three basic principles when putting a contract to tender:

• the contract should be accessible to everyone (although certain procedures may deviate from this principle)
• all candidates must receive the same information and be treated in the same way
• the procedures, selection criteria and deadlines should be fully transparent

For the same reason, the contracting authority should take into consideration any tender that meets the financial, economic and technical criteria set out in the specifications and respects the procedural requirements.

What does this mean in practice?

To satisfy these basic principles, the contracting authority must:

Clearly define its needs

In this preliminary stage, the contracting authority clearly and comprehensively describes the need for which it is inviting tenders. This allows it to estimate the total value of the contract correctly and select the most suitable procedure.

Specifically, it prepares detailed specifications that accurately describe the expected performance. In this stage it also decides whether:

• it is tendering the contract alone or in collaboration with other public authorities
• it will allow variants or options, within which candidates may deviate from the specifications within certain limits
• it will divide the contract into 'lots'. This practice is common for large or complex files and allows candidates to tender for part of the contract

Comply with the disclosure rules

Once the specifications have been drawn up, the contracting authority must communicate the contract through the appropriate channels:

• if the total amount of the contract exceeds 85,000 euros (excluding VAT), it should be published in the Belgian Bulletin of Public Tenders if the total value of the contract (excluding VAT) exceeds the following thresholds, it must also be published in the Official Journal of the European Union:
  • 5,186,000 euros for public works
  • 207,000 euro for goods and services.
    The threshold for public services and defence is 414,000 euros, and for central federal governments it is 134,000 euros.
• there is no disclosure obligation for smaller amounts. The contracting authority usually also publishes such contracts on its website or in the trade press or submits them to a selection of potential suppliers.

Besides a detailed description of the contract, this publication must also specify the deadline for submission of tenders and the selection and tender criteria.

Select the best tender

After receiving the tenders the contracting authority analyses and compares them thoroughly. The tendering authority is then legally obliged to select the 'most economically advantageous tender'. A key consideration in this choice is the best price or price-value ratio, but other factors also play a role.

For instance, your tender must clearly show that your company is in a sufficiently strong financial, organisational and logistical position to execute the contract successfully. Naturally, the contracting authority will also test the tender against the tender criteria defined for the contract, e.g. reduced CO2 emissions, fastest completion, lowest cost of ownership, etc.

This weighting is based on a points score or a value scale, which allows the contracting authority to select the best candidate in an objective manner.

Avoid conflicts of interest

A public contract must be awarded in a completely impartial manner. At the slightest suspicion of a possible conflict of interest – such as family members who work for one of the candidates or have a financial or other relationship with a potential supplier – the person responsible for the contract must challenge this.

The procedures for awarding public contracts are divided into two main categories:

• an open procedure starts with the publication of the contract through the appropriate channels, after which any interested company may submit a tender. This is followed by a single assessment round in which the tenders are analysed and the contract is awarded.
• a limited procedure takes place in two stages: first the contracting authority publishes a general call to companies to put themselves forward as candidates. From the interested parties the contracting authority selects a number of companies – usually at least five – which, in its analysis, have shown to be best suited to execute the contract. In the second stage the contracting authority asks these candidates to submit a tender, followed by the usual assessment and allocation round.  

Which tenders are selected?

In principle, the contracting authority must consider each submitted tender, provided this was submitted by a company that:

• meets all the financial, economic and minimum technical requirements specified in the call;
• is not in a state of exclusion (e.g., bankruptcy, tax or social security debts, etc.); and
• has submitted a 'correct' tender: in other words, it must respect all the procedural requirements, meet the need described in the contract and not contain any reservations.

The candidate selected to execute the contract depends on the selection method used, also known as 'method of award':

• In case of tendering the award is based purely on price: the candidate that has submitted the cheapest tender is awarded the contract.
• There are several selection criteria for a call for tenders, each with their own weighting, which are described in the contract specifications in addition to the price (e.g. environmental impact, speed of completion, choice of materials, etc.). The contract is awarded to thetender that, after weighting of these criteria, achieves the highest score.
• The negotiating procedure is mainly used for urgent contracts or contracts that are difficult to budget for. It is only applicable in specific cases provided for in the legislation on public tendering.
  The procedure is similar to a public tender, with one major difference: after receiving the tenders the contracting authority invites a number of candidates (at least three) to negotiate their proposal. Only after they have been able to refine and modify their tenders is the contract awarded.
  A variant is the 'negotiation procedure without publication'. In this case the negotiations start immediately without prior selection.
• In case of sizeable or complex contracts – often private-public partnerships – a competitive dialogue is appropriate. In this case the contracting authority negotiates with the potential candidates while it is still preparing the specifications.
  In the first stage it selects a number of potential suppliers and invites these to participate in the dialogue. The solution that best meets the needs of the authority is decided on jointly in this dialogue.

Once agreement is reached the candidates are given the opportunity to submit a tender. The final award takes place on the basis of the tender criteria that were jointly determined.

Special procedures

• By means of a concession for public works, a contracting authority may grant a party the contract to execute works at its own expense in exchange for the operating rights of the work executed, possibly supplemented with a form of compensation (e.g. construction and operation of an underground car park or toll tunnel).
• As of 1 July 2013, a contracting authority that puts out a tender for goods or services for daily use can also organise an electronic auction (E-auction). This is an additional step in the award process, after the tenders have been received.
  
  In effect, this is a 'reverse auction' whose purpose is to keep the price as low as possible. During one or more rounds candidates can each make a lower bid for all or part of their tender, after which the party with the lowest price is awarded the contract.

Every day dozens of new contracts are published, some of which are undoubtedly of interest to your company. But how and where do you find them?

Self search

It is best to start looking through the official channels, where contracting authorities must publish contracts from a certain threshold amount:

• the Belgian Bulletin of Public Tenders if the total amount of the contract exceeds 85,000 euros (excluding VAT)
• the Official Journal of the European Union if the total value of the contract (excluding VAT) exceeds the following threshold amounts:
• 5,186,000 euros for public works
• 207,000 euro for goods and services.
  The threshold for public services and defence is 414,000 euros, and for central federal governments it is 134,000 euros.

Contracts with a lower value are usually published on the website of the contracting authority or in the trade press.

Automatic search

Publication of tenders at the Flemish and Federal level takes place electronically through e-Procurement, while Wallonia and Brussels have their own platform. If you register on these platforms, you can create a search profile. This way you are automatically notified if a contract is published that meets your selection criteria (e.g. sector, region, amount, etc.).

There are also several specialised providers in our country that offer a similar, paid service.

Prospecting and networks

As an entrepreneur you know only too well how important prospecting and networking are in forging business relationships with individuals or companies. It is no different for the public and social-profit sector. Cold-calling, visiting a contracting authority, participating in trade fairs, word-of-mouth advertising – these are all proven methods to discover interesting opportunities.

Moreover, the budgets of most contracting authorities are public information. By studying their budget carefully, you can infer a lot about their future needs and capacity to tender contracts.

Let your reputation work in your favour

Just as decisive a factor is the reputation you build up by executing public contracts. If public authorities are familiar with the quality of your products or services they will be more inclined to do business with you again. This is especially an asset in procedures with no disclosure, where the contracting authority selects a number of potential suppliers.