New payment terms in public procurement

New legal regime

Articles 95, § 3-5 (works), 127 (supplies) and 160 (services) of the Royal Decree of 14 January 2013 regarding the general rules for execution of public tenders:

• 30 calendar days verification term + 30 calendar days payment term.

Exception for contracting authorities in the healthcare sector for public tenders for works, supplies and services pertaining to their healthcare activities.

• 30 calendar days verification term + 60 calendar days payment term.

Reasons behind reform

In its judgment C-585/20 of 20 October 2022, the Court of Justice ruled that a 30-day verification term combined with a 30-day payment term violates the principles as laid down in articles 4(3) to (6) of Directive 2011/7 of the European Parliament and of the Council of 16 February 2011 on combating late payment in commercial transactions.

• Urgent need to reform current payment regime for public tenders.

New legal regime

Verification and payment term are merged into one 30-calendar day “treatment term” during which both verification and payment must occur. A prolongation of the so-called treatment term is only possible if following cumulative conditions are fulfilled:

• Tender documents must explicitly mention extended treatment term
• Deviation must be motivated on the basis of the specific nature of the tender (however, such motivation does not need to be included in the tender documents)
• In any case the treatment term may not be longer than 60 calendar days.
• The prolongation may not be considered as manifestly unfair towards the tenderers.

Exception for contracting authorities in the healthcare sector remains

• 30-calendar day verification term with 60-calendar day payment term is still possible as long as it is specified in the tender documents and the addition of the verification term is not used to create a longer payment term

Publication and entry into force

The Royal Decree of 12 August 2024 amending the Royal Decree of 14 January 2013 regarding the general rules for execution of public tenders with respect to the payment rules was published in the Belgian State Gazette of 16 September 2024.

It will apply on all public tenders published as of 1 January 2025, or to the extent no prior publication is required, for all public tenders for which the invitation to participate is sent as of 1 January 2025.

Written by

• Caroline De Mulder

  Counsel