With a few exceptions, before public procurement contracts are awarded, there is a period of free competition to win the contract. This phase is launched by the publishing of calls for tender on the portal for public procurement contracts.

The preparation of the bid document and the tendering of the bid itself are therefore key steps in the procurement procedure.

The contract is not automatically awarded to the business (tenderer) which has tendered the lowest bid. During the procedure, the contracting authority (State, municipal authorities, public establishments or associations of communes) considers specific selection and awarding criteria.

Who is concerned

Any financial operator may prepare a bid document, and then tender a bid as part of the public procurement procedure. Here, the term "financial operator" means:

• any natural or legal person; or
• any public body; or
• any group of people;

who meets the conditions set forth in the tender specifications.

A business may choose between various types of public tendering processes:

• by trade (profession);
• by lot;
• by general contractor.

Prerequisites

The submission criteria are detailed in the tender documents accompanying the public contract notice or are sent directly to the business (procedure without publication). The following information is provided:

• award criteria, the weighting given to each criterion and the rating system;
• deadlines;
• penalties for delays;
• technical description of variants;
• required insurance policies.

Preliminary steps

Once the business has identified a public procurement notice of potential interest, or been invited by a contracting authority to tender a bid, it must verify whether:

• the resources (HR, technical, financial, etc.) at its disposal meet the contract requirements;
• it can meet the set deadlines.

Deadlines

To be eligible, a company must meet the deadlines for submission of the application/tender.

NB: only the arrival date of the tender is taken into account, not the sending date. It is therefore important to consider postal-delivery times.

How to proceed

Types of procedures

There are several types of public procurement procedures:

• normal procedures: a call for tender must be published on the portal for public procurement contracts;
• exceptional procedures, which may apply in view of the scope of the procurement contract for example:
  • negotiated procedure or restricted procedure without publication of notice;
  • negotiated procedure;
  • negotiated procedure with or without prior publication;
  • competitive dialogue.

Preparing the tender

A business must meet all requirements detailed in the tender documents. This documentation defines:

• the goods/services to be provided; and
• the conditions governing the tendering of bids; and
• the documents required by the contracting authority.

The bid document allows the business to:

• present itself or the members of the group of businesses;
• highlight its experience in the field;
• specify the financial resources and guarantees at its disposal;
• underscore the advantages it offers over the competition;
• define its project proposal.

Submission of the bid document

Bids may be submitted:

• in electronic format, through the Portal for public procurement contracts; or
• hand delivered against a receipt, or by registered letter with acknowledgement of receipt, if allowed by the contracting authority. 

For any contract whose value exceeds the threshold set by the European Union: tenders must be submitted electronically using the Portal for public procurement contracts.

Supporting documents

Depending on the procedure, the business must also prove that it has fulfilled its professional obligations by attaching the following documents to its tender:

• a non-liability certificate from the Joint Social Security Centre (Centre Commun de la Sécurité Sociale, CCSS);
• a certificate of compliance with respect to VAT obligations and liability from the Registration Duties, Estates and VAT Authority (Administration de l'enregistrement, des domaines et de la TVA);
• a non-liability certificate from the Luxembourg Inland Revenue (Administration des contributions directes – ACD), which will be issued upon request by the competent tax office of the ACD;
• an extract from the criminal record.

Where applicable, national and foreign subcontractors must also provide these certificates.

Good to know

Electronic invoices

Issue and transmission

As of 18 May 2022, in the context of a public procurement contract, businesses must issue and transmit electronic invoices which comply with:

• the latest European standard; and
• one of the following 2 formats:
  • XML UBL (Universal Business Language), as defined by ISO/IEC 19845:2015, and maintained by the non-profit organisation OASIS Open;
  • XML UN/CEFACT CII (Cross Industry Invoice), developed by UN/CEFACT based on the XML 16B (SCRDM — CII) schemas.

However, this requirement only comes into force on:

• 18 October 2022 for business operators whose financial performance does not exceed the set thresholds for 2 of the following 3 criteria as at the closure of FY 2019:
  • balance sheet total: EUR 20 million;
  • net turnover: EUR 40 million;
  • average number of staff members employed full time during the financial year: 250;
• 18 March 2023 for business operators whose financial performance does not exceed the set thresholds for 2 of the following 3 criteria as at the closure of FY 2019:
  • balance sheet total: EUR 4.4 million;
  • net turnover: EUR 8.8 million;
  • average number of staff members employed full time during the financial year: 50.

This requirement does not apply in the case of public procurement contracts awarded:

• as part of development cooperation;
• by diplomatic missions or consulates;
• as part of Luxembourg’s participation in international fairs and exhibitions held abroad;
• as part of State visits, official visits or working trips abroad.

Use of the Peppol network

The tendering authorities and entities must use the Peppol (Pan-European Public Procurement OnLine) network to automatically receive electronic invoices. The network can also be used to automatically issue and send electronic invoices.

A business operator has a range of options in order to be able to issue and send compliant electronic invoices through Peppol:

• renting a Peppol access point from one of the numerous specialist service providers already active in this field;
• establishing their own Peppol access point: for organisations of a certain size which have:
  • their own, experienced IT department; and
  • sufficient resources;
• using one of the invoicing and accounting tools (ERP software) that offers Peppol invoicing by default.

Who to contact