What Is a Public Contract? — Definition and Procedures

Anyone new to public procurement in Belgium first stumbles over the vocabulary. Public contract. Tender. Open tender. Adjudication. Marché public. Overheidsopdracht. In practice these terms blur into each other; in law they are not equivalent. This article explains what a public contract is legally, how it relates to a “tender”, which types exist, from what amounts European rules apply, and which procedures a contracting authority can use.

Two words for the same event — but not quite

In Belgian legislation, “public contract” (Dutch: overheidsopdracht; French: marché public) and “tender” or “tendering” are distinct concepts that everyday language conflates.

• A public contract is the contract itself: the agreement between a contracting authority and an economic operator.
• A tender procedure (or “procurement procedure”) is the process by which that contract comes into being: publication, selection, award.

When someone says “I won a tender”, they usually mean: I obtained a public contract through a procurement procedure. The terminology is also historically loaded: until the 2016 reform, there was a formal procedure called “open tender” (openbare aanbesteding / adjudication ouverte) based solely on price. That term has disappeared — its contemporary equivalent is the “open procedure”, which can use other award criteria as well.

Colloquially, many still use “tender” as a general term for any procedure by which the public sector buys something. That is informally correct, legally not. Throughout this article we use public contract for the legal concept and tender procedure or procurement procedure for the process, except where the context calls for otherwise.

The legal definition

According to the Act of 17 June 2016 on Public Procurement (Article 2, 17°), a public contract is “an agreement for pecuniary interest concluded between one or more economic operators and one or more contracting authorities and having as its object the execution of works, the supply of products or the provision of services”.

Three elements stand out:

1. Written agreement — not a verbal arrangement, not a subsidy, not a donation. A formal signed contract.
2. For pecuniary interest — there is monetary consideration. A free donation by a company to a municipality is not a public contract.
3. Contracting authority + economic operator — on one side an entity with public characteristics; on the other a private or public entity that delivers the performance.

When all three conditions are met, the rules of the Act of 17 June 2016 apply. This entails obligations: publication, equal treatment, transparency, formal procedure.

Who is a “contracting authority”?

The Act defines this concept broadly. A contracting authority is not only “the State” in the strict sense. Concretely:

• The federal state — all FPS (BOSA, Justice, Public Health, etc.) and their agencies.
• The Regions and Communities — Walloon Region, Flemish Region, Brussels-Capital Region, French-speaking Community, Flemish Community, German-speaking Community, and their agencies.
• The provinces and municipalities — all 581 Belgian municipalities, all provincial administrations, public welfare centres (CPAS / OCMW).
• Inter-municipal companies — associations of municipalities such as Fluvius, ORES, Pidpa, IDETA.
• Bodies governed by public law — entities specifically established to meet needs of general interest, mainly financed or controlled by the public sector. Examples: universities and university colleges, sufficiently public-funded hospitals, public broadcasters (VRT/RTBF), public transport operators (De Lijn, TEC, STIB, SNCB), and Bpost (in part).
• Associations of any of the above.

Alongside these “classical” contracting authorities, special rules apply to utility sectors (water, energy, transport, postal services) and to concessions.

A private company is not a contracting authority, even when it receives public subsidies — unless it is directly financed or controlled by the public sector and specifically pursues general interest objectives. This distinction can be hard to apply in practice; a legal review is advisable in case of doubt.

The three types of public contracts

The Act distinguishes three types based on the object:

Works

Building, transforming, renovating, demolishing, infrastructure construction. The Act defines “works” as the execution, or the design and execution, of works listed in certain activities, or the realisation of a work meeting the requirements of the contracting authority. Examples:

• Building a new school.
• Constructing a motorway section.
• Renovating a town hall.
• Installing a cycling bridge.
• Extending a residential care centre.

For works above €30,000 (and in any case above certain category thresholds), Belgian contractor recognition (erkenning van aannemers / agréation des entrepreneurs) is required.

Supplies

Buying, leasing, renting or otherwise acquiring goods, with or without a purchase option. Examples:

• IT hardware (laptops, servers).
• Vehicles for municipal services.
• Schoolbooks for an education network.
• Foodstuffs for a hospital kitchen.
• Medical equipment.
• Energy (electricity, gas) — sometimes subject to specific rules.

Services

Anything that is neither works nor supplies. Examples:

• Study assignments (architects, engineers, consultants).
• Cleaning services.
• Legal advice and lawyers.
• Translation services.
• IT maintenance and software development.
• Marketing campaigns.
• Insurance.

For mixed contracts — for example an IT project with hardware supply and associated implementation services — the main component determines the type. Sometimes the contracting authority must split the contract; sometimes it can be awarded as a whole, depending on the law and the nature of the performance.

Thresholds — when do which rules apply?

Not every public contract follows the same rules. The applicable regime depends on the contract value (excl. VAT):

Below €30,000 — low-value public contracts

For contracts with an estimated value below €30,000 excluding VAT, a simplified regime applies: the contracting authority can order directly from an economic operator of its choice, without a formal award procedure, on the basis of a simple purchase order or invoice. No publication, no formal specifications, no award committee. The core principles (equality, transparency) still apply, and it is recommended to obtain at least three offers for contracts above a few thousand euros.

From €30,000 to the EU threshold — Belgian procedure

Between €30,000 and the European thresholds, a formal Belgian procedure applies. Publication takes place at the national level (e-Notification, Bulletin of Tenders). The Act 2016 and the Royal Decree of 18 April 2017 fully apply — specifications, publication, selection, award, standstill period.

Above the EU threshold — mandatory European procurement

From the European thresholds onwards, the contract must also be published at the European level via TED (Tenders Electronic Daily). Time limits are longer, the ESPD (European Single Procurement Document) is mandatory, and foreign companies from across the EU/EEA and GPA countries enjoy full access.

The European thresholds are revised every two years. For 2024-2025 in the classical sectors (Article 11 RD on Award 2017):

For utility sectors (water, energy, transport, post) and concessions, different — generally higher — thresholds apply. Consult FPS BOSA for the current values — thresholds are updated every two years on the basis of the European delegated regulation.

The award procedures

The Act 2016 provides for seven award procedures, each with its own scope of application. A short map:

Open procedure

The most accessible form. Any interested economic operator can submit an offer directly, without prior selection. One stage, then evaluation on selection and award criteria. The standard for most classical contracts.

Restricted procedure

Two stages. The contracting authority first publishes a notice on which candidates apply. After selection, the authority invites the selected candidates to submit an offer. Used when the authority wants to limit the number of tenderers to keep the evaluation manageable.

Competitive procedure with negotiation

Like the restricted procedure, but with a negotiation phase between the contracting authority and the tenderers. Allowed in precisely defined circumstances (Article 38 Act 2016): complex contracts, contracts whose need cannot be met without adjusting standard solutions, contracts requiring prior design or innovation work.

Competitive dialogue

For very complex contracts where the contracting authority does not know in advance what the solution should look like (e.g. public-private partnerships, large IT transformations). The authority conducts dialogues with selected candidates, on the basis of which they submit their final offer.

Innovation partnership

For purchasing products, works or services that do not yet exist on the market. The contracting authority works with selected partners on development and purchase in successive phases.

Negotiated procedure without prior publication

Exceptional regime, allowed only in limited cases (Article 42 Act 2016): no valid offers received after an open procedure, urgency due to unforeseeable circumstances, exclusive rights, art works, repeated similar services on a limited scale. No publication, limited invitations.

Simplified negotiated procedure with prior publication

A specifically Belgian procedure for contracts below the European thresholds. Simpler than the competitive procedure with negotiation, but with a formal publication. Often used for medium-sized contracts where price-quality trade-offs are useful.

Framework agreement

Not a separate procedure, but an instrument: a framework concluded with one or more economic operators within which concrete orders or mini-competitions take place subsequently. Very popular for recurring purchases (office supplies, legal advice, IT maintenance).

The four core principles

Regardless of the procedure or threshold regime, four principles run through the entire legislation (Article 4 Act 2016):

• Equality and non-discrimination — all economic operators receive the same information, the same opportunities, the same treatment, irrespective of nationality, size or existing relationships with the contracting authority.
• Transparency — procedures, criteria and decisions are clear, published in advance, and motivated afterwards.
• Competition — there must be sufficient competition; the authority cannot artificially restrict it.
• Proportionality — requirements on tenderers, award criteria and execution conditions must be proportionate to the object of the contract.

These principles are not just abstract: they are strictly applied by the Council of State and the ordinary courts, and form the basis of most annulment proceedings.

A procurement procedure in six steps

How does a typical classical procedure unfold? A simplified timeline:

1. Preparation — the contracting authority defines its need, estimates the amount, chooses a procedure, drafts the specifications (administrative and technical parts) and sets the award criteria.
2. Publication — via e-Notification (Belgian level) and/or TED (European level). Sometimes a prior information notice.
3. Submission of offers — tenderers prepare their dossier (35-60 calendar days on average) and submit electronically via e-Tendering.
4. Evaluation — first the check on exclusion grounds and selection criteria, then on award criteria. Results in a ranking and an award decision.
5. Standstill period — for contracts above the European threshold, a standstill period of 15 days applies between the award decision and contract conclusion, during which non-selected tenderers can lodge complaints or request a suspension at the Council of State.
6. Conclusion and execution — the contract is formally concluded. Execution proceeds under the General Execution Rules (AUR — Royal Decree of 14 January 2013): payment terms, surety, delay penalties, acceptance.

The legal framework on one page

Belgian public procurement legislation rests on five main instruments:

• Act of 17 June 2016 on Public Procurement — general law, transposing European directives 2014/24/EU and 2014/25/EU.
• Act of 17 June 2016 on concession contracts — separate regime for concessions, transposing directive 2014/23/EU.
• Royal Decree of 18 April 2017 — placement rules for the classical sectors (procedures, selection, award).
• Royal Decree of 14 January 2013 — General Execution Rules (AUR) for the execution of public contracts.
• Act of 17 June 2013 — motivation, information and remedies (the standstill law).

In addition, there are RDs for utility sectors, concessions, and specific topics (social and environmental clauses, e-procurement, statistics).

Where to find Belgian public contracts?

The official publication platforms:

• e-Procurement (Belgium, BOSA) — federal platform for publication and submission: e-Notification for notices, e-Tendering for offers, e-Catalogue for orders.
• TED — Tenders Electronic Daily (European Union) — mandatory publication for contracts above the European thresholds.
• Bulletin of Tenders / Bulletin der Aanbestedingen / Bulletin des Adjudications (Belgium) — official publication, linked to e-Notification.
• Regional platforms for specific domains (e.g. some inter-municipal companies’ own platforms).

In practice, companies tracking multiple sources use aggregator platforms that combine all official channels, with search filters by CPV code, region, threshold and type. TenderWolf is one such platform.

Who can submit an offer?

Any economic operator with a legal personality (sole proprietorship, BV/SRL, NV/SA, association, cooperative) or as a self-employed natural person can submit an offer, provided:

• No mandatory exclusion grounds — no irrevocable conviction for serious offences, no significant tax or social security debts outside an active payment plan.
• Meeting the selection criteria — professional standing, financial capacity, technical capacity.
• Recognition where required — for works above certain thresholds.
• Timely and regular offer — submitted within the deadline, in the correct manner (electronically via e-Tendering), with all required documents.

Foreign companies from EU member states, EEA countries, Switzerland and GPA countries enjoy the same access as Belgian operators, on the basis of mutual recognition and equal treatment.

Practical — where to start?

For an entrepreneur not yet active in public procurement, a workable starting path:

1. Understand your positioning — which CPV codes cover your activity? Which regions do you serve? What threshold order of magnitude are you aiming at?
2. Build your dossier — prepare selection evidence (annual accounts, references, staff qualifications), possibly fill in an ESPD template.
3. Apply for recognition if you are in works and pass the threshold (see Belgian Contractor Recognition).
4. Track current publications via e-Procurement or an aggregator.
5. Start small — first submissions on low-value contracts or below the European threshold let you learn the system before tackling larger contracts.
6. Actually read the specifications — not only the administrative part; also the technical specifications and annexes (see Tender Specifications).

Sources

• Public procurement — FPS BOSA (NL)
• Public procurement — FPS BOSA (FR)
• Act of 17 June 2016 on Public Procurement — FPS BOSA
• Royal Decree of 18 April 2017 (Award classical sectors) — FPS BOSA
• Royal Decree of 14 January 2013 (General Execution Rules) — FPS BOSA
• Directive 2014/24/EU — EUR-Lex
• TED — Tenders Electronic Daily