New implementation rules for public procurement contracts – part 2: scope of application and possibility to depart from the general implementation rules

New implementation rules for public procurement contracts – part 2: scope of application and possibility to depart from the general implementation rules

Below you will find the second instalment in our series, discussing the scope of application and the possibilities for departing from the general implementation rules.
III.  Scope of application 

The AUR 2013 first of all apply to :
- public procurement contracts and concessions for public works in the classic sectors;
- public procurement contracts in the sectors of water, energy, transport and postal services (special sectors)
- public procurement contracts in the defence and security area. 

The new art. 6 of AUR 2013 states that the AUR 2013, regardless of the estimated contract amount, shall not be applicable to :
- contracts for certain supplies placed via negotiated procedure without publication;
- contracts for certain services of financial institutions;
- contracts for certain legal services;
- contracts concerning certain health and social services;
- combined contracts of contracting authorities from several countries;
- contracts that relate to the formation and the operation of a mixed company with a view to the execution of a contract;
- promotion contracts for works, in so far as they consist of the financing, design and realisation or renovation of works or structures, with a view to making them available for a period of at least ten years, and the promoter is paid by means of availability fees;

The AUR 2013 further apply to all contracts with an estimated amount, without VAT, equal to or greater than 30,000.00 EUR.
If the price of the contract, without VAT, is situated between 8,500.00 EUR (17,000.00 EUR in the special sectors) and 30,000.00 EUR, then only some provisions are applicable, i.e. those which are regarded as essential, namely: art. 1 to 9, 13, 17, 18, 37, 38, 44 tot 63, 67 tot 73, 78, §1, 84, 95, 127 and 160 AUR 2013.
The implementation conditions are not applicable to the contract whose amount, without VAT, is equal to or less than 8,500.00 EUR (17,000.00 EUR in the special sectors).
The provisions which under the AUR 2013 are not obligatorily applicable, can be made applicable by the contract documents to a specific contract.
According to new art. 7 AUR 2013, only the following articles apply to framework agreements:
- chapter 1 AUR 2013;
- the articles 61 to 63 AUR 2013. 

As for contracts that are concluded on the basis of the framework agreement, in principle all provisions are applicable.
Art. 8 AUR 2013 states that when, by taking into consideration a free variant, a supplies contract has become a services contract or vice versa, in principle the applicable implementation provisions continue to apply to the contract. Nevertheless, to the extent that the application of one or more of these provisions would thereby become impossible, this can give rise to changes which if necessary are included in a supplemental deed.
IV.  Departures and inequitable clauses (Art. 9 AUR 2013) - (art. 3 AUR 1996) 

New is that art. 9 AUR 2013 provides that the contracting authority may never depart from chapter 1 AUR 2013 (the general provisions), from the provisions relating to modifications to the contract, relating to the advances and relating to late-payment interest.
On the other hand, departures in the contract documents are prohibited and any clause to the contrary is deemed not to have been written with regard to:
-  extension of the payment periods;
-  extension of the verification periods; 

However, the preceding provision concerning the payment periods is not applicable provided that the following conditions are satisfied:
- the contract documents expressly provide for a longer payment period and;
- this departure is objectively justified by the special nature or characteristics of the contract and;
- the payment period is under no circumstances longer than sixty days. 

The preceding provision concerning the verification periods is not applicable provided that the following conditions are satisfied:
- the contract documents expressly provide for a longer verification period and;
- the extension entails no manifest unfairness vis-à-vis the contractor. 

A contractual provision or a practice that does entail any manifest unfairness vis-à-vis the contractor with regard to the date or period for verification or payment, the interest rate for arrears in payment or the compensation of collection expenses shall be deemed not to have been written. Contractual clauses and practices that exclude the payment of interest for arrears in payment as well as contractual clauses and practices that exclude compensation for collection expenses are regarded as manifestly unfair.
In assessing the question of whether a contractual provision or a practice entails manifest unfairness vis-à-vis the contractor, all circumstances are taken into consideration, in particular:  
- any significant departure from good commercial practices which is in conflict with good faith and fair treatment;
- the nature of the works, supplies or services;
- the question of whether the contracting authority has objective reasons to depart from the legal interest rate for arrears in payment, from the intended verification period, from the intended payment period or from the intended compensation for the collection expenses.

Just like art. 3, § 1 AUR 1996, the special requirements of the contract must make the departure necessary and the list of departures must be explicitly set forth at the beginning of the specifications (art. 9, § 4 AUR 2013).
Furthermore, art. 9, § 4 AUR 2013 provides, according to the same principle as art. 3, § 1 AUR 1996, a number of provisions that require a formal justification in order to be able to depart, namely: the core articles 10, 12, 13, 18, 25 to 30, 44 to 63, 66, 68 to 73, 78 to 81, 84, 86, 96, 123 and 154 AUR 2013.
If the justification is missing from the specifications, the departure will be deemed not to have been written. New is the provision that this last sanction does not apply in the case of an agreement signed by the parties, which can be the case within the framework of a negotiated procedure or competitive dialogue. It was deemed disproportionate to apply the sanction of invalidity if the parties reached mutual agreement on a specific departure, even if that departure was not expressly justified. The formal mention of the sanction (and the exception) is an important change compared to art. 3, § 1 AUR 1996.