Proposition 52K2276

Projet de loi introduisant un nouveau livre relatif à la motivation, à l'information et aux voies de recours dans la loi du 24 décembre 1993 relative aux marchés publics et à certains marchés de travaux, de fournitures et de services.

General information ¶

Submitted by

CD&V Leterme Ⅱ

Submission date

Nov. 23, 2009

Official page

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Status

Adopted

Requirement

Simple

Subjects

EC Directive award of contract public procurement appeal exchange of information

Voting ¶

Voted to adopt

CD&V LE PS | SP Open Vld MR

Abstained from voting

Groen Vooruit Ecolo N-VA LDD FN VB

Party dissidents ¶

• Peter Luykx (CD&V) abstained from voting.

Contact form ¶

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Discussion ¶

Dec. 10, 2009 | Plenary session (Chamber of representatives)

Full source

This is a draft law introducing a new book on the motivation, information and remedies for the law of 24 December 1993 on public procurement and certain contracts for works, supplies and services.

Dear colleagues, your committee first heard an introductory presentation from the Secretary of State to the Anti-Fraud Coordination Assistant Prime Minister. by Mr. State Secretary Carl Devlies said the bill had two main objectives.

DIRECTIVE OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL of 11 December 2007 amending Council Directives as regards improving the effectiveness of appeal procedures in public procurement. On the other hand, to extend partially these provisions to contracts not covered by the European Directives on the coordination of public procurement procedures.

During the general discussion, Mr. George noted that the present bill represents a revolution in relation to the current situation. He therefore poses a series of questions.

Can the Government provide clarification as to the scope of Article 78 in the draft? In fact, it provides for the possibility of canceling the contract itself. For several years, companies have appealed either before the Council of State or before the judge of referred persons to obtain a suspension measure.

What will be the line between these two procedures from now on?

Will the Council of State have exclusive jurisdiction or will it be necessary, as before, to bring an appeal before the Council of State and, subsequently, a procedure for damages before the courts of the judicial order?

Finally, can the government specify how it intends to organize these procedures in the short term from now on?

by Mr. Waterschoot, for its part, noted that the qualification system is only applicable in special sectors and not in traditional sectors.

Is it possible to introduce this qualification system for the traditional sectors as well?

Does the government also consider taking other measures to improve the quality of public procurement?

For his part, Ms. Almaci pointed out that the directive is already from 2007. She regrets that the government has been so late to submit the bill for consideration. Why was it filed so late? It also asks whether the directive can be fully and correctly transposed by amending the law of 24 December 1993, whereas the directives have not been transposed by that law but by the laws of 15 and 16 June 2006 which have not yet entered into force.

by Mr. The Secretary of State replied that the transposition of the directive took a lot of time because the rather complex structure of the directive had to be integrated into Belgian legislation. The adjustments made by this bill to the Act of 24 December 1993 on public procurement and certain works, supplies and services contracts, and its implementing orders, provide for the transposition of the binding provisions of these directives. A large royal decree is still in preparation and a consultation is currently underway with the sectors concerned.

Considering the technical nature of the answers given to Mr. George, Waterschoot and then Mr. Daems and Van Biesen, I find it wise, Mr. Speaker, to refer to the excellent written report prepared by the services.

The draft law, amended by Mr. Daems and Waterschoot, was finally approved by ten votes and three abstentions.

My speech will be very brief.

Mr. Minister, dear colleagues, I had actually observed that this bill constitutes a real revolution. The Secretary of State responded to me that Article 78 brought about a radical change. From now on – I believe that it is necessary to insist on the importance of this provision ‑ in order to bring us into compliance with the Directive of the European Parliament and of the Council of 2007, the State Council will have the possibility to suspend public procurement while until now, it was limited to suspending the detachable act.

It will also be able to make much larger decisions since the efficiency of the decisions made by the Council of State will be assured by the fact that the courts of the judicial order will also be able to suspend the contract itself. The rights of the contracting entities will therefore remain protected.

I think it was interesting and important to emphasize this aspect. With this bill, we not only put our public procurement law in line with European provisions but also increase the protection of contracting candidates who too often were injured and then had to wait for long trials before the State Council and then in damages and interests to be compensated.