Public procurement involves public money. The amounts are large, the stakes high and the temptation to circumvent rules is real. Belgian and European procurement law therefore provides a range of mechanisms to safeguard the integrity of the process — from exclusion grounds to codes of conduct, from conflict-of-interest rules to whistleblower protections.

Conflict of interest

What is it?

A conflict of interest arises when a person involved in the procurement procedure (official, expert, jury member, adviser) has a direct or indirect interest that compromises their impartiality. This can be financial (shareholder in a tenderer), personal (family relationship with a tenderer) or professional (former employee of a tenderer).

Legal framework

Article 6 of the Act of 17 June 2016 requires the contracting authority to take appropriate measures to prevent, identify and remedy conflicts of interest during the award procedure. This transposes Article 24 of Directive 2014/24/EU.

The law uses a broad definition: any situation in which involved staff members have an interest that may appear to impair their impartiality and independence falls within scope. It therefore covers not only actual conflicts of interest but also the appearance of such conflicts.

Examples

An official who drafts the specifications has a partner who works at one of the candidate tenderers.
A jury member evaluating the tenders recently carried out a consultancy assignment for one of the tenderers.
A municipal councillor who co-approves the award decision is a director of a company that has submitted a tender.
An external expert advising on technical specifications has a commercial relationship with a supplier.

Measures

The contracting authority must:

Request declarations from all persons involved in the procedure (no interests, reporting of possible conflicts).
Exclude persons once a conflict of interest is identified.
Document the procedure and report transparently on measures taken.

Exclusion grounds

Mandatory exclusion

The law provides for mandatory exclusion grounds (Article 67 of the 2016 Act). A tenderer is excluded if it has been irrevocably convicted of:

Participation in a criminal organisation.
Bribery of public officials.
Fraud (subsidy or tax fraud).
Terrorism or financing of terrorism.
Money laundering.
Child labour or human trafficking.

The contracting authority is obliged to verify these grounds and exclude the company concerned. There is no margin of discretion.

Discretionary exclusion

In addition, discretionary exclusion grounds exist (Article 69 of the 2016 Act) that the authority may invoke:

Violation of environmental, social or labour law.
Bankruptcy or insolvency.
Serious professional misconduct casting doubt on professional integrity.
Serious deficiencies in a previous public contract leading to termination or damages.
False declarations when providing information.
Undue influence on the decision-making process.
Non-compliance with fiscal or social obligations.

Self-cleaning measures

A company falling under an exclusion ground may put forward self-cleaning measures to demonstrate sufficient reliability despite the exclusion ground. These include:

Payment of damages or fines.
Cooperation with the investigation.
Concrete measures to prevent recurrence (compliance programme, organisational changes, independent audits).

The contracting authority assesses whether the self-cleaning measures are sufficient. The burden of proof lies with the company.

If you fall under a mandatory exclusion ground, propose self-cleaning measures early and concretely. Document corporate governance improvements, staff training, internal controls and third-party audits. The authority prefers to work with companies that take integrity seriously over those with spotless records that show no awareness of risks.

Code of conduct

Many Belgian authorities apply a code of conduct for public procurement. The Flemish government, for example, has issued a circular laying down specific behavioural rules for officials involved in procurement:

Prohibition on accepting gifts or benefits from (potential) suppliers.
Obligation to report possible conflicts of interest.
Prohibition on secondary activities that may create a conflict.
Chinese walls for confidential information.

Whistleblowers

The European Whistleblower Directive (Directive 2019/1937), transposed into Belgian law, protects persons who report breaches of procurement law. This applies both to officials and to employees of tenderers who identify irregularities.

The protection includes:

Protection against dismissal or retaliation.
Confidential treatment of the report.
Possibility of anonymous reporting.

Risks for the tenderer

Integrity breaches have far-reaching consequences:

Exclusion from current and future contracts.
Criminal prosecution in cases of bribery or fraud.
Reputational damage making it impossible to win further public contracts.
Recovery of amounts already paid if discovered after award.

Tips

Invest in compliance. An internal compliance programme training employees on integrity rules in public procurement is not a luxury — it is a necessity.

Report proactively. If as a tenderer you suspect a possible conflict of interest on the authority’s side, report this in writing. This protects your own position and the integrity of the procedure.

Document everything. In a dispute about integrity, evidence is crucial. Keep all communications, internal decisions and contacts with the contracting authority.

Check your partners. In a joint venture or subcontracting arrangement, you are jointly responsible for the integrity of your partners. Verify their background and request declarations.

You are responsible for the integrity of all partners and subcontractors in your tender. If a partner falls under an exclusion ground (criminal conviction, tax debt), your entire tender is excluded. Actively verify each partner's background before submission — do not discover this problem after award.

Integrity risks and conflicts of interest in public procurement