Late-performance fines and penalties in Belgian public procurement

Two different sanctions: penalty and late-performance fine

The royal decree of 14 January 2013 laying down the general rules for the performance of public contracts has two separate sanctions. A penalty sanctions a performance failure: work that does not meet the specification, work that cannot be finished on time, written orders not followed (article 44). A late-performance fine sanctions only the missed performance deadline (article 46). Consolidated French text read on Wallex on 31 October 2026: Royal decree of 14 January 2013, consolidated French text (Wallex)

Fines are independent of penalties. They are due without formal notice, by the mere expiry of the period, without a record, and applied by law for every day of delay. The contractor also remains liable for any damages the buyer owes third parties because of the delay. VAT is not part of the calculation base (article 46/1).

The decree does not apply to contracts whose estimated amount is below 30,000 euros, except what the procurement documents make applicable (articles 5 and 6, § 5). For those contracts, the delay clauses are in the order or the specification: Low-value contract

The performance failure and the penalty

Every failure is recorded in a written record, a copy of which is sent to the contractor by registered post or by an electronic sending that records the date equally. The contractor must put it right at once and may reply in writing within fifteen days of the record being sent; after that, silence counts as admitting the facts (article 44, § 2). The period can be shortened for a serious failure to pay wages or for employing third-country nationals staying illegally.

The procurement documents may set a special penalty. Otherwise the general penalty of article 45 applies, from the third day after the record is sent when it is daily:

• One-off penalty: 0.07% of the initial contract amount, at least 40 euros and at most 400 euros.
• Daily penalty: 0.02% of the initial amount per day, at least 20 euros and at most 200 euros, when the failure must be removed at once.
• The penalty applies only if no justification was accepted or given within fifteen days.

The late-performance fine formulas

The table follows articles 86, 123 and 154 of the decree, read on Wallex on 31 October 2026. In all three cases, fines totalling less than 75 euros per contract are disregarded.

Two worked examples

These examples only apply the decree’s formulas to round figures. They do not describe any real contract.

• Works of 100,000 euros planned in 100 working days, finished 10 working days late: R = 0.45 × 100,000 × 10²/100² = 450 euros. The 5% cap is 5,000 euros.
• Works of 60,000 euros planned in 60 working days, 10 days late: M does not exceed 75,000 euros and N does not exceed 150 days, so N² becomes 150 × 60 = 9,000. R = 0.45 × 60,000 × 100/9,000 = 300 euros.
• Supplies of 20,000 euros delivered 10 days late: 0.1% × 10 × 20,000 = 200 euros. The 7.5% cap is 1,500 euros.

Calendar days, phases and partial deadlines

If a works period is not set in working days, N is the number of days in the period multiplied by 0.7, rounded down (article 86, § 3). If the performance period was an award criterion, the calculation is set in the procurement documents, and the decree’s formula applies otherwise (article 86, § 2).

A contract in several parts or phases, each with its own period and amount, is treated as that many separate contracts. Partial deadlines not declared binding are mere forecasts: only the final deadline counts. If they are binding, missing them triggers the fines set in the procurement documents or, failing that, those of the decree (articles 86, §§ 4 and 5, 123, § 2, and 154).

For supplies and services, the value starts from the initial contract amount, modifications included, without the price revisions of article 38/7 or the price reductions of article 71 (articles 123 and 154).

Measures taken by the buyer and other sanctions

If the contractor stays inactive after the fifteen days, or its reply is not found justified, the buyer may take measures on its own initiative (article 47). They are notified by registered letter or letter delivered against receipt:

• Unilateral termination of the contract: the whole performance bond then goes to the buyer, and no late-performance fine applies to the terminated part. The performance bond: Performance bond
• Performance in-house of all or part of the unfinished contract, at the defaulting contractor’s cost and risk.
• One or more contracts on the contractor’s account with third parties, at the defaulting contractor’s cost and risk, which bears the extra cost.
• Article 48 also lets the buyer exclude the defaulting contractor from its contracts for three years, in particular for a significant or persistent failure, after hearing it.

Waiver of fines and penalties

Article 50 grants a full or partial waiver of the late-performance fine when the contractor proves the delay is due to the buyer or to the circumstances of article 38/9 arising before the contractual deadlines. Refunded fines then bear interest at the rate of article 69. The waiver is partial when the fine is disproportionate: this is established if the unfinished work is worth less than 5% of the total amount, can be used normally, and the contractor did everything to finish as soon as possible.

Or the right is lost, the request is made in writing no later than ninety days after the single or final payment for works, or after payment of the invoice from which the fines were withheld for supplies and services (article 50, § 3). The partial waiver of a disproportionate penalty follows the same period (article 51). Payment itself follows its own rules: Payment terms

What an SME checks before replying

These points follow from the articles cited. They do not replace reading the specification of the contract concerned.

1. Read in the specification the performance period, its unit (working or calendar days) and any clauses on special fines or penalties: Specification
2. Check whether the period is an award criterion: the calculation and cap of the fines may then change. The criteria: Award criteria
3. Spot partial deadlines declared binding: each can carry its own fines.
4. Calculate the highest possible fine (5% or 7.5%, up to 10%) before promising a short period.
5. Record in writing any act of the buyer that delays performance, and keep the ninety days for a waiver request in mind.

What AOEX does and does not do

AOEX reads TED notices and public e-Procurement notices. When a published contract is open, the bid kit reads the published documents, including the clauses on periods and fines, and dictates the fields of the reply: Bid kit The terms are also in the glossary: Glossary

AOEX does not calculate fines on a running contract, dispute anything with the buyer, submit the tender or say who will be chosen. This page is not legal advice. The texts to follow remain the royal decree, the law of 17 June 2016 and the procurement documents: Guide to the law of 17 June 2016

Frequently asked questions

Must the buyer send a formal notice before applying a late-performance fine?

No. Article 46 of the royal decree of 14 January 2013 says late-performance fines are due, without formal notice, by the mere expiry of the performance period, without a record, and applied by law for every day of delay. French text read on Wallex on 31 October 2026.

How is the fine calculated for a works contract?

With the formula R = 0.45 × M × n²/N² of article 86: M is the initial contract amount, N the number of working days planned, n the number of days late. If M does not exceed €75,000 and N does not exceed 150 days, N² is replaced by 150 × N. The total is capped at 5% of M.

And for supplies or services?

0.1% per day late of the value of the supplies or services delivered with the same delay, up to 7.5% (articles 123 and 154). If the period was an award criterion, the procurement documents set the calculation and may raise the cap to 10%.

What is the difference between a penalty and a late-performance fine?

A penalty sanctions a performance failure recorded in a written record, after fifteen days to reply (articles 44 and 45). A late-performance fine sanctions only the missed deadline and applies without a record (article 46). The two are independent.

Can a late-performance fine be waived?

Yes, in the cases of article 50: fully or partly if the delay is due to the buyer or to the circumstances of article 38/9 arising before the deadlines, or partly if the fine is disproportionate, the unfinished work being worth less than 5% of the contract. The request is in writing, within ninety days, or the right is lost.

Does AOEX calculate a contract’s fines?

No. AOEX reads TED notices and public e-Procurement notices and helps read the published documents, including the specification’s clauses on periods and fines. AOEX does not calculate fines on a running contract, does not dispute anything with the buyer, does not submit a tender and does not give legal advice.

Sources

Royal decree of 14 January 2013 laying down the general rules for the performance of public contracts, articles 5, 6, § 5, 44, 45, 46, 46/1, 47, 48, 50, 51, 86, 123 and 154, consolidated French text read on Wallex on 31 October 2026: Royal decree of 14 January 2013, consolidated French text (Wallex) Justel, in French: Royal decree of 14 January 2013 (Justel)