The choice between an open and a restricted procedure is the most fundamental procedural decision in procurement law. Both are standard procedures — always available, without special justification. Yet the choice has concrete consequences for how you organise your bid, which documents you submit when, and how much time you have.
The open procedure
In the open procedure, any interested economic operator may submit a tender. There is no prior selection phase: selection and award take place in a single step. The authority publishes the notice, all interested parties submit their tenders with the required evidence, and the authority assesses both suitability and quality of the tender.
Characteristics
The open procedure is the most commonly used procedure in Belgium, especially for contracts below European thresholds. It is transparent, relatively fast and administratively simpler than the restricted procedure.
Advantages for the authority: maximum competition, one procedural step, no risk of an overly narrow candidate field.
Advantages for the tenderer: you do not need to pass through a selection phase to be allowed to submit a tender. Any party with the right qualifications can compete.
Disadvantages: for complex contracts the number of tenders can be high, increasing the evaluation burden for the authority. As a tenderer, you immediately invest in a full tender without certainty of being selected.
Minimum time limits
The minimum time limit for submitting tenders differs depending on whether the contract is above or below the European threshold.
Above the European threshold: at least 35 days from the date of dispatch of the notice. With electronic publication and electronic availability of procurement documents, this can be shortened to 30 days. In cases of urgency (justified), a shortened time limit of 15 days may be used.
Below the European threshold (Belgian law): the minimum time limit is 22 days for national publication. For the simplified negotiated procedure, even shorter time limits apply.
The restricted procedure
The restricted procedure runs in two phases. In the first phase (selection), candidates submit a request to participate. The authority selects the candidates that meet the selection criteria. In the second phase (award), only the selected candidates are invited to submit a tender.
Characteristics
Advantages for the authority: manageable number of tenders, ability to limit the candidate field (minimum of five, unless insufficient suitable candidates), lower evaluation burden.
Advantages for the tenderer: once selected, you submit a tender against a limited number of competitors. The investment in the tender is more targeted.
Disadvantages: the process takes longer due to the two phases. As a tenderer, you must act twice — first the selection dossier, then the tender. Failure in the selection phase means you cannot submit a tender, even if you would have had the best price.
Minimum time limits
Above the European threshold:
- Phase 1 (request to participate): at least 30 days from dispatch of the notice.
- Phase 2 (tender): at least 30 days from dispatch of the invitation to selected candidates. In cases of urgency, phase 1 may be shortened to 15 days and phase 2 to 10 days.
Below the European threshold (Belgian law):
- Phase 1: at least 22 days.
- Phase 2: time limit set by the authority, depending on complexity.
The choice from the authority’s perspective
The authority is free to choose between both procedures. There is no rule prescribing when which procedure must be used. In practice, patterns exist.
Open procedure is typically chosen for: simpler contracts, contracts where the market is broad, supply contracts with clear specifications, contracts below the European threshold.
Restricted procedure is typically chosen for: more complex contracts (large ICT projects, construction), contracts where the authority wants to limit the number of participants, contracts where the tender effort is significant and the authority only wants to invite serious candidates.
What does this mean for your bid strategy?
In an open procedure
Plan your time tightly. You have one time limit to get everything ready: selection documents, technical tender, price, evidence. Start by inventorying knock-out criteria (exclusion grounds, selection requirements) and check whether you meet them before you begin the substantive tender.
Invest selectively. Because there is no prior selection, you can invest significant time and still not be selected. Do a quick bid/no-bid analysis based on the specifications before you start.
Watch the burden of proof. In an open procedure you must submit all evidence immediately. Ensure that certificates, references and attestations are current. An expired certificate can lead to exclusion.
In a restricted procedure
Invest heavily in the selection phase. This is your ticket to the tender. Present references convincingly, ensure your financial standing and technical capability are clearly documented. A weak selection dossier excludes you, regardless of the quality of your future tender.
Use the selection phase as intelligence. Once selected, you know who you are bidding against. In restricted procedures, the authority typically publishes the list of selected candidates. Analyse your competitors and adjust your strategy.
Manage your internal planning. Two phases mean two deadlines. Inform your team that a second effort follows after selection, often with a short turnaround time.
Other procedures in brief
In addition to the open and restricted procedures, special procedures exist that the authority may only use if specific conditions are met.
Competitive procedure with negotiation. The authority conducts negotiations with selected candidates. Permitted when needs cannot be met without adaptation of available solutions, with complex specifications, or after a failed open or restricted procedure.
Competitive dialogue. The authority conducts a dialogue with selected participants to develop solutions. Used for particularly complex contracts where the authority is unable to establish technical specifications.
Innovation partnership. Aimed at developing an innovative solution that does not yet exist on the market, followed by its purchase. Rarely used but relevant for R&D-intensive projects.
Negotiated procedure without prior publication. Only in exceptional circumstances: technical exclusivity, extreme urgency, or after repeatedly failed procedures.