Proposition 53K2752

Projet de loi relatif à la motivation, à l'information et aux voies de recours en matière de marchés publics et de certains marchés de travaux, de fournitures et de services.

General information ¶

Authors

CD&V Gerald Kindermans
LE Josy Arens
MR Olivier Destrebecq, Philippe Goffin
Open Vld Patrick Dewael, Luk Van Biesen
PS | SP Olivier Henry
Vooruit Karin Temmerman

Submission date

April 16, 2013

Official page

Visit

Status

Adopted

Requirement

Simple

Subjects

award of contract public procurement appeal access to information

Voting ¶

Voted to adopt

CD&V Vooruit LE PS | SP Open Vld MR

Abstained from voting

Groen Ecolo ∉ N-VA LDD VB

Party dissidents ¶

• Bernard Clerfayt (MR) abstained from voting.
• Peter Luykx (CD&V) abstained from voting.
• Olivier Maingain (MR) abstained from voting.
• Damien Thiéry (MR) abstained from voting.

Contact form ¶

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Discussion ¶

May 29, 2013 | Plenary session (Chamber of representatives)

Full source

I am referring to the excellent written report.

You now have the word on behalf of your group.

Given the importance of the present bill, I would like to briefly explain our voting behavior.

The law in question is of particular importance, both on the economic level – it affects many sectors – and on the legal level, given the large number of cases relating to public procurement.

It is the final part of the transposition of European Directive 2007/66/EC. Much of it was already transposed by law of 23 December 2009 four years ago. A few weeks ago, in Parliament, texts were submitted to put the crown at work and to guarantee the great security for both governments and providers.

It is not my habit to discuss the discussions of the committee in the plenary session, but we have had a very exciting and substantially good discussion in the committee, which, however, has a number of points to be noted.

First of all, we have great concerns about the time of submission and the speed with which the law should enter into force. Parliament is advised that the law should enter into force as early as 1 July 2013.

I remind you of the great importance of the law that I recently cited. Contracting authorities and companies wishing to submit to public procurement will have only very short time to adapt and comply with the new law.

It is said that it must be done quickly and that it must be done now. Therefore, the proposal is also a proposal. Some willing soldiers have been found to correct the remaining work of this government. During the discussion in the committee we were confirmed that the first letter of this law came on paper only after the hiring of a specialist. It started in the second half of January 2013. However, it has been known since 2009 that the closure section should come into effect before 2013. We have seen enough in this hemisphere that Parliament becomes active as soon as the government determines that it has neglected itself.

A second point of criticism is that the bill was not evaluated by the State Council. It has great economic and legal importance. There are innumerable legal issues about procurement, which strengthens us in the belief that this law must be 100% waterproof from a technical and legal point of view. However, in the absence of a report from the State Council, that is not a certainty for us.

This law is needed. Whether it will enter into force before July 1, 2013 remains the question. It can also be a few months later. In the committee, we asked the State Council for an opinion, but the Parliament did not want it. We will not be annoying with the request to do so. The law is necessary and important even though we fear that the method has created gaps.

We therefore fear that both the people who are directly affected by this law and the Parliament themselves will still face a number of problems with this law in the future. But the law is necessary. We will not vote against it, my colleagues. We will remember.

Mr. Speaker, dear colleagues, as a good soldier, I wondered how I would present to you this bill which, it is true, is at least of a high technical level. I also did not want to relate to you my intervention presented in the committee, which had raised observations, some of which have been reformulated here. I wanted to use the tribune to respond to comments on the form and the background issued by colleagues from N-VA and Ecolo.

First of all, I would like to explain in a few words the objectives of the proposal, namely the provisions in terms of reasons, information and remedies for public procurement and certain contracts for works of goods and services in the traditional sectors, in the special sectors and in the defence and security markets.

We will therefore incorporate these provisions into all the legislation that will form the new Law on Public Procurement and will come into force – this has been specified – from 1 July 2013.

The number of comments I have received is three.

The first concerns the reproach related to the presence of a minister in commission. I would like to emphasize the presence of the Secretary of State here to defend it and I thank him for this.

The second note is why we made the decision to write a bill and not a bill. As I just understood, it was an emergency for its entry into force. In addition, it should be remembered that we lived 540 days without a government while it was absolutely necessary to integrate the appeal routes in order for the law to become complete and be applicable from July 1st.

Furthermore, it was exclusively a technical matter consisting of taking back existing provisions.

I come to the third aspect. Were we going through a bill to avoid the State Council? I would like to repeat: that was absolutely not the aim. The book IIbis has also been submitted to this court and to the Public Procurement Commission. The rest of the system is regulated by the European Directives.

Finally, as far as the subjects are concerned, I have mentioned two.

First, a complaint was raised over the lack of environmental clauses in the text of the proposal. It should be noted that they are not part of the appeal procedures. On the other hand, an intergovernmental working group is currently working on a circular to identify the social, environmental and ethical causes that should now be envisaged in public procurement.

Second, the N-VA requested an adaptation of Article 12 relating to the obligation to comply with a standstill period. I have in mind a legal analysis from the Chancellery, which shows that no amendment of the text is necessary. I would like to read the conclusion of this analysis: “In the combined reading of the provisions of the different Directives, it appears that there are ultimately four possibilities for derogations in both systems. Three of them are included in the bill. In the economy of the Special Sector Directive, the fourth possibility of derogation for contracts based on a framework agreement is taken into account in the first. The EU Directives on Judicial Protection do not therefore preclude the provision of a derogation from the obligation to comply with a standstill period for contracts based on a framework agreement. For greater clarity, it also seems desirable that this possibility of derogation be formulated explicitly for special sectors, as currently provided for in Article 12 of the proposal.”

I thank you for your attention.

Mr. Speaker, I will not repeat Mr. Henry’s response; the important questions in the discussion have already been answered. It is clear to me that the text is necessary and urgent.

A legitimate question was raised regarding the possibility of derogation from the standstill obligation. I will not repeat Mr. Henry. Three options are provided, but Article 12 cannot be derogated. Thus, I think, the question is clearly answered. So I make the same comment.

Mr. Speaker, I would like to thank both Mr. Henry and the Secretary of State for their technical addition to the pending points from the committee.

At no time have I heard responsibility for the fact that that legislation has remained so long. As early as 2009 it was known that this law had to come into effect. It is then almost guilty failure to wait until early January 2013 to start.