Not all public contracts fall under the same rules. For utilities (water, energy, transport, postal services) and for defence and security, separate regulatory frameworks apply with higher thresholds, more flexible procedures and specific exceptions. Anyone active in these sectors must know the difference — because the procedural rules determine both the competition and the tendering strategy.
Utilities: Directive 2014/25/EU
Which sectors?
The Utilities Directive (also called special sectors) applies to contracting entities active in:
- Water: drinking water extraction, transport and distribution.
- Energy: electricity and gas — production, transport and distribution.
- Transport: public transport by rail, tram, bus, metro, cable or automated systems.
- Postal services: postal and related services.
In Belgium, NMBS/SNCB, Infrabel, De Lijn, STIB/MIVB, TEC, Fluvius, Elia, and the water companies are typical utilities sector entities.
Higher thresholds
The European publication thresholds are significantly higher for utilities than for the classic sectors:
| Type | Classic (2024-2025) | Utilities (2024-2025) |
|---|---|---|
| Supplies & services | €143,000 | €443,000 |
| Works | €5,538,000 | €5,538,000 |
The higher threshold for supplies and services gives utilities more scope to award contracts nationally without European publication.
More flexible procedures
In addition to the standard procedures (open and restricted), utilities may use the negotiated procedure with prior call for competition without the strict conditions that apply in the classic sectors. This makes negotiation the standard option in the utilities sector.
Other specific features:
- Qualification systems. The entity can establish a permanent qualification system whereby companies register in advance. For a specific contract, the entity then invites qualified operators.
- Longer framework agreements. Where the classic sectors apply a maximum duration of 4 years, framework agreements in utilities may last up to 8 years (with justification).
- Exemption with sufficient competition. If an activity in a utility sector is directly exposed to competition on a market where access is not restricted, the European Commission can exempt that activity from the procurement rules.
Belgian transposition
Belgium transposed the Utilities Directive in the Act of 17 June 2016 on public procurement (the same act as the classic sectors, but with separate provisions in Book II) and the Royal Decree of 18 June 2017 for the placement rules.
Defence and security: Directive 2009/81/EC
Specific framework
A separate framework applies to contracts in the field of defence and security: Directive 2009/81/EC. This directive recognises that defence contracts have specific characteristics justifying a deviating regime:
- The protection of essential security interests of the Member State.
- The need for confidentiality (classified information).
- Specific requirements regarding security of supply.
Scope
The directive applies to:
- Military equipment: weapons, ammunition and war material.
- Sensitive equipment and services: equipment and services for security purposes involving classified information.
- Works and services directly related to military or sensitive equipment.
Not all defence procurement falls under this directive. Standard office furniture or IT hardware for defence typically falls under the classic directive.
Special rules
- Restricted competition. The entity can impose requirements regarding security of supply and limit the choice of tenderers on security grounds.
- Negotiation as standard. The negotiated procedure with publication is the standard procedure.
- Information security. Tenderers must demonstrate that they can adequately protect classified information.
- Offset (compensation requirements). Although the EU prohibits offset in principle, arrangements for industrial participation exist in practice for large defence contracts.
Article 346 TFEU
On top of the Defence Directive, Member States retain the right under Article 346 TFEU to completely exempt contracts from procurement rules where essential security interests are at stake. This article is interpreted restrictively: it is not a blank cheque, but an exception that must be objectively justified.
Strategy for tenderers
Always check which regime applies. The notice states whether the contract is a classic contract, a utilities contract or a defence contract. The applicable directive determines the procedural rules, thresholds and time limits.
Qualification systems in utilities are an opportunity. Register proactively with utility companies that operate qualification systems. Once qualified, you are automatically invited for relevant contracts.
Defence contracts require specific compliance. Ensure your security clearance is in order if you wish to tender for defence contracts involving classified information.
The negotiation scope is wider. In both utilities and defence, negotiation is the norm. Prepare your tender with the expectation that a negotiation round will follow — and preserve strategic room.