Today, 31 July 2018, the Government of the Brussels Capital Region published a circular (the Circular) relating to the obligation for Regional public authorities and public law entities to include social clauses in their public procurement contracts. The Brussels Capital Region sees social clauses as an additional instrument to meet its objectives in relation to training and the activation of certain target groups.

The Circular is addressed to all Regional services and Regional autonomous administrative bodies. Those entities must include social clauses in their works contracts whose value exceeds EUR 750,000 and in services contracts whose value exceeds the EU thresholds (EUR 221,000) to the extent the duration of the contract exceeds 60 calendar days. Social clauses may be included in all public procurement contracts below these thresholds (including supply contracts). The Regional entities may derogate from their obligation in certain limited cases.

Actiris, the Brussels public employment agency, is tasked with the legal and technical support to contacting authorities to draft social clauses and help with their implementation. Social clauses can take the form of selection criteria, award criteria or performance criteria. Examples include clauses that impose that a certain percentage of the works must be performed by jobseekers registered with Actiris or by trainees or that part of the works must be subcontracted to certain enterprises in the social sector.

The use of social clauses in public procurement contracts in the Brussels Capital Region is not new. There were earlier Regional legal frameworks on this issue, but their application was so far more limited than the Circular.

Private contractors must take into account these social clauses when tendering for public procurement contracts in the Brussels Region. It is also important that these clauses are adequately reflected in any arrangements with subcontractors. We can help you with questions on the application of social clauses, your tender strategy and draft clauses for your subcontracts.