Even the most experienced public purchasers can make mistakes that can weaken the legal validity of their contract or compromise its effectiveness. These errors are often linked to automatisms, a lack of internal coordination or an occasional ignorance of certain regulatory subtleties. Identifying and correcting these risky practices is an essential lever for improving the quality of procedures and making public procurement more secure.

The artificial fragmentation of markets

This involves dividing a contract into several smaller contracts in order to remain below the advertising thresholds. This practice is prohibited, as it distorts competition and circumvents the obligation to put the contract out to tender. All estimates must take account of the overall requirement over a relevant period.

Using old specifications without updating them

The re-use of a standard document or an old set of specifications without thorough checking may lead to the introduction of clauses that are obsolete, unsuitable or not in line with current regulations. Each document must be re-examined and adapted to the context of the contract to be launched.

The absence of a formal estimate of the amount

Launching a procedure without a reliable estimate of the overall value of the contract is a fundamental failure. Such an estimate is essential to determine the applicable procedure and to justify the decisions taken. It must be documented and included in the administrative file.

Lack of justification for the choice of procedure

Each procedure chosen must be capable of being defended in the event of an audit. A simple automatism based on the amount is not enough: it is necessary to explain how the procedure meets the context of the need, the issues at stake, the timetable constraints or the characteristics of the contract.

Insufficient or poorly calibrated advertising

Failure to publish on the e-Notification platform, failure to meet advertising deadlines or publication that is too restricted may result in the procedure being irregular. Transparency is a constant requirement, including for contracts below the European thresholds.

The analysis of the bids did not comply with the announced criteria

The award criteria must be applied strictly as announced in the specifications. Any modification during the procedure or any implicit weighting exposes the administration to the risk of a challenge. The analysis reports must reflect this rigour.

Lack of traceability and archiving

Many of the problems encountered during inspections are due to a lack of documentation: decisions not formalised, e-mails not kept, missing minutes, etc. Good traceability is essential to ensure that the procedure is secure after the event.

Conclusion

The compliance of a public procurement contract is based on a series of simple but systematic steps: make a good estimate, justify it, publish it properly and analyse it properly. Identifying frequent errors and introducing virtuous automatisms not only helps to reduce legal risks, it also helps to ensure the long-term professionalism of the purchasing function.

Sources

• eJustice Belgium - Public Procurement Act of 17 June 2016
• eJustice Belgium - Royal Decree of 18 April 2017
• Court of Audit - Analysis of irregularities in public contracts