Drawing up clear specifications and defining appropriate selection criteria are two fundamental pillars of a successful public procurement procedure. In Belgium, where contracting authorities are subject to a strict legal framework, these elements take on particular importance: their rigour determines not only the legal certainty of the procedure, but also its ability to attract the right economic operators. In the context of negotiated procedures, particularly without prior publication, this requirement for editorial quality becomes all the more crucial as the competition is based on a targeted and restricted call for tenders.

Sources of disputes in public contracts

Disputes can arise at any stage in the life cycle of a contract. Even before the tender is submitted, some economic operators find that access to information is partial or discriminatory, that response times are too short, or that contractual clauses are unclear or even unfair. During the award procedure, the reasons for rejection may be insufficiently substantiated or based on an incorrect assessment of the criteria. Finally, during the performance of the contract, disputes may relate to late payment, substantive modifications that do not comply with the contract, penalties that are incorrectly applied, or even unjustified terminations.

The main legal risks to anticipate

The first risk is non-compliance of the bid. An irregularity, even a minor one, can lead to automatic rejection with no possibility of correction. There are also reputational risks if a dispute becomes public, as well as direct financial consequences in the event of penalties, loss of revenue or exclusion from a procedure. It is therefore essential to anticipate these risks in order to protect both the financial health and the image of the company.

Anticipating for better protection

The first step is to carry out an in-depth technical and legal analysis of the special specifications. It is important to check the consistency of the clauses, the conditions for amendment or early termination, and the administrative and financial requirements. Building up a solid file of evidence, retracing all exchanges with the awarding authority, is also an effective lever in the event of a subsequent claim.

In some cases, a constructive discussion with the public purchaser may be enough to defuse a contentious situation. However, if a formal dispute is necessary, there are a number of remedies available: prior administrative complaint, pre-contractual or contractual summary proceedings before the Conseil d'État, or even legal action before the civil courts or the company's court for performance disputes.

Introducing appropriate risk governance

Implementing a risk management strategy is essential for any company that regularly responds to public tenders. This involves training teams in the regulations, setting up a process for internal legal validation of bids and rigorous monitoring of contract performance. Legal monitoring and reporting tools can be used to complement this system, so that weak signals can be detected and rapid action taken in the event of difficulties.

Conclusion

The growing complexity of public procurement, combined with increasingly stringent legal requirements, makes rigorous management of potential risks and disputes essential. Companies have everything to gain from incorporating this legal dimension into the early stages of a call for tenders, rather than dealing with it in the rush to litigation.

By establishing a culture of compliance, an active legal watch and appropriate professional support, it is possible not only to reduce risks, but also to strengthen a company's credibility and competitiveness in the eyes of public purchasers.

Public procurement should not be seen as a legal minefield, but as a structured and secure lever for growth, provided that you prepare for it with method and expertise.

Sources

• Belgian Public Procurement Portal - Federal Public Service BOSA
• Council of State (Belgium) - Jurisdiction over public procurement disputes
• Belgian Official Gazette (Moniteur Belge) - Legislation and legal publications
• Le Forem (Walloon Employment Service) - Legal and HR support for employers