The award of “small” public contracts: which procedure should be used?

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For large, complex projects, the question of which procedure is most suitable for awarding the public contract(s) concerned is generally not difficult to answer. If the specific conditions for its use are met, a procedure involving negotiations is normally chosen. In the classic sectors, this means the competitive procedure with negotiation or the competitive dialogue. The added value of the possibility to negotiate is evident in the context of such complex projects. 

In this article, however, we wish to focus on the award of contracts with a limited scope and therefore also a lower estimated value: which procedures are available for such contracts, and which are also the most suitable? The choice of procedure is of fundamental importance. It determines whether the contract must be published, whether the procedure is conducted in one or more phases, whether negotiations are possible, etc. 

Moreover, the choice is fixed: during the award process, the type of procedure can no longer be changed. If the contracting authority finds that the chosen award procedure is not optimal in light of the contract concerned, it must either continue the process through to completion, albeit suboptimally, or terminate the procedure and restart it in a different manner. 

General overview of the various award procedures and their main characteristics 

A contracting authority cannot freely choose just any procedure. The law determines which procedures exist and when they may be used. Particularly in the classic sectors discussed here, a number of restrictive conditions have been imposed for the use of certain procedures. In the utilities sectors, the standard procedures, for which no specific conditions apply and no justification for their application is required, are broader. 

The table below first provides an overview of the main award procedures provided for in the Act of 17 June 2016 on public procurement (hereinafter, the Public Procurement Act), answering the question for which contracts these procedures may be used (as regards the classic sectors).¹ We then zoom in on the procedures that are particularly relevant for smaller contracts.

Type of procedureMain characteristicsFor which contracts?
Open
procedure
  • Phases: single-phase2
  • Duration/complexity: quickest and simplest procedure
  • Negotiations: no negotiations on tenders possible
  • Typical use: ideal for “off-the-shelf” products or services (less so for works)
All (standard procedure)
Restricted
procedure
  • Phases: two-phase procedure3
  • Duration/complexity: quick and simple procedure, but with limited competition due to prior selection
  • Negotiations: no negotiations on tenders possible
  • Typical use: for rather more complex contracts where negotiations are not considered necessary
All (standard procedure)
Competitive
procedure with
negotiation
  • Phases: two-phase procedure
  • Duration/complexity: longer duration and more complex procedure
  • Negotiations: negotiations on tenders possible, although in principle not on final tenders4
  • Typical use: appropriate for complex contracts
Provided that the conditions for application are met – to be justified
Competitive
dialogue
  • Phases: three-phase procedure5
  • Duration/complexity: long duration and most complex procedure
  • Negotiations: negotiations on the final tender with the highest-ranked tenderer possible (with possible designation of a preferred bidder)
  • Typical use: appropriate where the need is clear in general terms, but not the concrete (possible) solution(s), and certainly not the detailed specifications
Provided that the conditions for application are met – to be justified
Innovation
partnership
  • Phases: two-phase procedure
  • Duration/complexity: longer duration
  • Negotiations: negotiations on tenders possible, but in principle not on final tenders
  • Typical use: for the development and purchase of products, services or works not already available on the market (or at least which must be significantly improved)
Provided that the conditions for application are met – to be justified
Simplified negotiated procedure with prior publication
  • Phases: single-phase procedure
  • Duration/complexity: medium duration
  • Negotiations: negotiations on tenders possible, but in principle not on final tenders
  • Typical use: for smaller contracts where negotiations are appropriate
Only below specific thresholds – to be justified
Negotiated procedure without prior publication
  • Phases: single-phase procedure
  • Duration/complexity: medium duration, no publication obligation unlike other procedures, but, where possible, several economic operators chosen by the contracting authority must be consulted
  • Negotiations: negotiations on tenders possible, including on final tenders (with possible designation of a preferred bidder)
  • Typical use: possible only in exhaustively listed and restrictively interpreted cases of application
Provided one of the exhaustively listed cases of application is met – to be justified

Specific award procedures suitable for “small” contracts 

If we then zoom in on the possibilities for small contracts, this leads us to the following procedures for the classic sectors.6

Contracts of limited value: 
  • For contracts with an estimated value below EUR 30,000 (excluding VAT), a very flexible procedure may be conducted 
  • The Public Procurement Act is largely not applicable; only the core provisions apply, in particular the principle of equal treatment 
  • Where possible, the contracting authority must consult the conditions of several economic operators (without being obliged to request an actual tender); evidence of that consultation must be available 
  • Otherwise, there is no obligation to use procurement documents, apply selection or award criteria, etc. 
  • The contract may be concluded by accepted invoice 

This procedure gives the contracting authority very broad freedom and flexibility, resulting in the rapid conclusion of the purchase concerned. 

The Public Procurement Act had already provided for an increase in the threshold for contracts that may be concluded in this way by accepted invoice, from EUR 8,500 to the current EUR 30,000. A further relaxation may now be on the horizon: on 30 April 2026, the federal Council of Ministers approved a preliminary draft act seeking to simplify the Public Procurement Act on several important points. One of the main proposed changes concerns the increase of the threshold for contracts of limited value to EUR 75,000. This change would undoubtedly have a substantial impact in practice.7


The negotiated procedure without prior publication: 
  • In certain exceptional cases, a public contract does not have to be announced (neither at European level nor at Belgian level). The contracting authority may limit itself, where possible, to consulting several economic operators of its own choosing. Recourse to this procedure must, however, be justified 
  • One of the exhaustively listed cases of application for this single-phase procedure concerns “small” contracts, more specifically where the final contract amount (excluding VAT) is lower than 
    • EUR 140,000 
    • EUR 216,000 for certain categories of services (only for contracting authorities other than federal contracting authorities) 
    • EUR 100,000 for each lot of a contract whose estimated contract value does not reach the publication thresholds, provided that the aggregate value of these lots does not exceed 20% of the estimated value of the contract 
  • If several economic operators are consulted, the contracting authority nevertheless does not have to provide for selection criteria for these small contracts 8
    • The rules on mandatory exclusion grounds and exclusion grounds relating to tax and social security debts however remain fully applicable 
  • The contracting authority may, but is not obliged to, negotiate with the tenderers in this procedure on the initial and subsequent tenders, including the final tenders, with a view to improving their content 
    • If several economic operators are consulted, this must be done on the basis of “procurement documents” 
    • The award criteria, insofar as there are any, which is required in the case of application discussed here, may not be negotiated 
    • For the small contracts discussed here, even the minimum requirements may be negotiated, provided that this has not been excluded in the procurement documents 
    • A preferred bidder may be designated, and negotiations may be conducted with that bidder, provided that the principle of equal treatment is respected 
  • The Public Procurement Act applies to this procedure, albeit with a number of exceptions for Belgian contracts, including the small contracts discussed here 

This procedure is also characterised by a certain degree of flexibility, which lies in particular in the freedom to choose whom to contact, although that choice must be capable of being justified. In practical terms, this means that this procedure is useful where publication is not necessary, and the contracting authority wishes to contact a few suitable economic operators quickly. 

The simplified negotiated procedure with prior publication: 
  • This procedure applies exclusively to Belgian contracts; it does not appear in the European Directives that form the basis of Belgian public procurement law 
    • It may be used, among other things,  
      • for supply and service contracts whose estimated value is below the threshold for European publication (currently EUR 216,000 excluding VAT, except for federal contracting authorities, for which a threshold of EUR 140,000 excluding VAT applies)  
      • for works contracts whose estimated value is below EUR 750,000 excluding VAT 
  • This procedure allows negotiations without a mandatory prior selection phase. Any interested economic operator may submit a tender immediately in response to a contract notice (that tender also contains any information requested regarding selection) 
  • The contracting authority may negotiate on the initial and all subsequent tenders, with the exception of the final tenders, in order to improve the tenders. In doing so, the principle of equal treatment must always be safeguarded 
    • The minimum requirements and award criteria may not be negotiated  
  • Negotiations may take place in successive phases, so that the number of tenders to be negotiated is reduced by applying the award criteria (this possibility must, however, be provided for in the notice or another procurement document) 
  • Negotiations are not mandatory, however; in that case, the initial tender immediately becomes the final tender 

The procedure, which is subject to specific rules under the Public Procurement Act, combines speed and flexibility: there is no prior selection phase, but negotiation remains possible. It is therefore often used in practice. 

Social and other specific services

Finally, we should also consider the particular situation where the contract concerns social and other specific services (as listed in Annex III to the Public Procurement Act): 

  • This includes, among other things, healthcare, social and education services, as well as hotel and restaurant services, legal services (insofar as they are not excluded), investigation and security services, etc. 
  • Where such services are concerned, the contracting authority may choose which procedure it wishes to conduct: 
    • Simplified negotiated procedure with prior publication: this purely Belgian procedure may also always be used for social and other specific services, up to an estimated value of EUR 750,000 excluding VAT 
      • Only a number of specifically listed core provisions of the Public Procurement Act then apply to the exclusion of the other provisions of the Act (unless the contracting authority itself declares them applicable) 
    • Negotiated procedure without prior publication: this may be used where the estimated value of the contract is below EUR 750,000 excluding VAT in the classic sectors, or is equal to or higher than that threshold, but where one of the cases provided for the application of this procedure exists 
      • Here too, only a number of statutory core provisions apply (unless otherwise provided in the procurement documents)
    • Any other award procedure mentioned in the Public Procurement Act: these procedures may be used for the purchase of social and other specific services, even if the conditions for application of those procedures are not met 
      • In that case, the rules for the chosen procedure must be applied in full, entirely in accordance with the Public Procurement Act 
    • Sui generis procedure with prior publication, for which the contracting authority itself determines the detailed rules 
      • A number of core provisions of the Public Procurement Act always remain applicable, such as the principle of equal treatment 
      • The contracting authority is, of course, also obliged to comply with the rules that it has itself established 
  • Whatever procedure is chosen, it must in any event respect the principles of transparency, proportionality and equal treatment of the participating economic operators 
  • The contracting authority is also obliged, regardless of the chosen procedure, to establish award criteria (without being obliged to assign specific weightings; if it does not do so, all criteria have equal value)  

For the purchase of these services, the contracting authority can often organise the procedure more simply and flexibly, provided that the basic principles such as equality and transparency are respected. The legislator has established a “light regime” for this purpose. 

Conclusion 

The Public Procurement Act is often regarded, rightly or wrongly, as an obstacle to a smooth purchasing process in the public sector. But for small contracts, the Act offers more flexibility than is often thought. A heavy procedure is therefore not always necessary. The key step is to choose the right procedure in advance, taking into account the amount, the complexity and the desired flexibility.  

In addition, attention should be paid to the possible substantial increase, and therefore expansion of the scope of application, of the threshold for contracts of limited value, which would have an impact on practice that should not be underestimated. We will of course continue to monitor this. 

Notes

[1] In addition to these possible procedures explicitly mentioned in the Public Procurement Act for the choice of procedure, the Act also contains a number of "sui generis" procedures: the design contest, the sui generis award procedure relating to social and other specific services, the award procedure for contracts of limited value and the award procedure for the appointment of a lawyer. A number of these are discussed further below.

[2] Any interested economic operator may submit a tender immediately. 

[3] A selection is first made following requests to participate; only selected candidates may submit a tender.

[4] This prohibition is nevertheless subject to criticism.

[5] There are three phases, since a mandatory dialogue phase takes place between the selection phase and the tender phase.

[6] It should be clarified that the competitive procedure with negotiation will not be addressed here. One of the cases of application of this two-phase procedure does nevertheless exist where the estimated contract value, excluding VAT, is lower than EUR 750,000 for works contracts or EUR 140,000 or EUR 216,000 for supply and service contracts, depending on whether or not the contracting authority is a federal contracting authority. The major advantage of this procedure is the possibility to negotiate, but because of the stricter rules applicable to this procedure, which make it more complex and requires more formal steps to be completed, it may sometimes be considered too onerous for small contracts. Therefore, we do not include it in extenso in the overview here.

[7] It is also worth mentioning that the same preliminary draft act provides for a general possibility of direct award for contracts with an estimated value up to and including EUR 3,000. No "procedure" therefore needs to be conducted for such contracts.

[8] This is logical, since the contracting authority has itself chosen the economic operators contacted.