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.

Understanding the strategic role of specifications

The specifications are the heart of the public contract. It is not just an administrative document; it is the written expression of the contracting authority's real needs. It must describe the services expected precisely and unambiguously, so that tenderers can make an informed offer. All too often, specifications contain inaccuracies or inconsistencies that give rise to numerous requests for clarification, or even to downstream disputes.

A good set of specifications must strike a balance between legal rigour and technical clarity. They must enable qualified operators to clearly identify the purpose of the contract, the methods of execution, the specific constraints, and the selection and award criteria. In Belgium, the reference framework remains the Royal Decree of 18 April 2017 on the award of public contracts in the traditional sectors.

Well-constructed selection criteria to ensure fair competition

The purpose of the selection criteria is to check that the economic operators have the technical, professional and financial capacity to perform the contract. The aim here is not to assess the quality of the tender (this is covered by the award criteria), but to establish a filter upstream to ensure that only suitable companies actually take part.

The choice of criteria must always be based on a direct link with the subject of the contract. For example, if the subject of the contract is public procurement consultancy, it may be justified to require references in this field. On the other hand, arbitrarily restricting references to a certain type of client (for example, only local authorities) may prove excessively restrictive. This is particularly true in the case of equivalent public structures, such as inter-municipal organisations, which also perform tasks of communal interest and are governed by public law.

Such a filter, if not objectively justified, could reduce competition and contravene the principles of proportionality and free access to public contracts, two cornerstones of European and Belgian public procurement law. Equal treatment of tenderers is a fundamental principle that all contracting authorities must scrupulously respect.

Striking a balance between legal certainty and market openness

The challenge is to reconcile legal certainty with genuine market openness. Criteria that are too flexible could allow unsuitable service providers to qualify, while requirements that are too rigid risk artificially closing off access to competent operators. Good practice therefore consists of basing each requirement on a clear, objectively verifiable objective that is linked to the purpose of the contract.

Belgian and European case law regularly reiterates the importance of proportionality in defining requirements, and the federal government offers guides along these lines. It is also advisable to test the feasibility of the requirements with the market beforehand, by means of a market study or informal consultation, especially in areas where supply is limited.

Conclusion

Rigorous management of procurement procedures is inconceivable without paying particular attention to the drafting of specifications and the precise definition of selection criteria. These documents are not simply administrative formalities: they constitute the contractual and legal framework that binds the contracting authority to its future service providers.

Clear specifications and proportionate criteria provide legal certainty for the procedure, guarantee equal treatment for operators and encourage genuinely competitive bids. Conversely, requirements that are too narrow or poorly calibrated can artificially restrict access to the market, to the detriment of the public interest.

Sources

• European Commission - Public Procurement Guidance for Practitioners (2021)
• OECD - Public Procurement Toolbox
• SIGMA - Public Procurement Training Manual (Revised 2021)
• Belgian Federal Government - Guide de rédaction des documents de marché