The three operations distinguished
| Operation | What it does | Regime |
|---|---|---|
| Clarify | settles a choice left open by the framework | free |
| Add | introduces work not provided for | free |
| Derogate | sets aside an applicable provision | regulated |
The distinction is not academic. A provision setting aside a rule without presenting itself as a derogation remains a derogation, with the consequences attaching to it. Classification depends on effect, not on the heading.
The regime of derogations in public contracts
This is where Belgian rules are most demanding, and their requirements are poorly known. They tightly frame derogations from the general performance rules.
The principle. Derogation from mandatory provisions is possible only in duly reasoned cases, and to the extent made indispensable by the particular requirements of the contract.
Two cumulative conditions emerge from that wording: the reasons, and the indispensable character. A reasoned but non-indispensable derogation does not satisfy the test.
An exception to the indispensable character exists for certain exhaustively listed provisions, from which derogation is possible in duly reasoned cases without the indispensable character having to be demonstrated.
Derogations requiring formal reasons
This is the most operational point, and it splits derogations into two categories. Some are free, others require a formal statement of reasons.
In principle the reasons need not appear in the particular specification. The reasons must exist, but they may remain in the administrative file.
By exception, certain provisions require formal reasons in the particular specification. They are exhaustively listed by the rules and cover sensitive matters: performance security, time limits, acceptance, payments, sanctions, and several provisions specific to works contracts.
For a quantity surveyor reading a particular specification, the list of derogations is therefore first-order information. It shows exactly where the standard regime has been set aside, and those points deserve reading first.
Provisions from which derogation is prohibited
A hard core remains, set by article 9 of the royal decree of 14 January 2013, and it concerns mainly protection against late payment. Those provisions admit no derogation at all.
Among those targeted are clauses regarded as manifestly unfair, including any excluding compensation for recovery costs. Their nullity applies regardless of the parties' agreement.
A derogating clause on those matters is ineffective, even if accepted. It is a protection of public policy, not a default rule.
How to word a derogation
Four drafting rules, simple and rarely observed. They concern the list, the reasons, the placement and the consistency.
Identify the derogation as such. Use the word, not a formulation suggesting a mere clarification.
Cite the provision set aside precisely, by its reference in the framework or in the rules, not by paraphrase.
State the replacement rule. Setting aside without replacing creates a gap someone will have to fill by interpretation.
Group the derogations in an identifiable place in the particular specification, in addition to their mention at the relevant point. A reader must be able to inventory them without rereading the whole document.
The commonest errors
Four configurations recur regularly.
Derogation by modified copying. Taking a text from the framework and changing two words produces an undeclared, and often unintended, derogation.
The inherited derogation. A particular specification reused from an earlier project retains derogations whose justification lay in that project's circumstances.
The contradictory derogation. Two passages of the particular specification set aside the same rule in different directions.
The unreasoned derogation where reasons are required. The omission exposes the clause, and it is easy to spot on inspection.
What this means for a professional
Four rules.
Read the list of derogations before the rest of the particular specification. It says where the contract departs from the general regime.
Never derogate inadvertently. Any modification of a framework text must be conscious and deliberate.
Check that each derogation is still justified when an earlier document is reused.
Price the consequences of derogations. A derogation on time limits, acceptance or payments has a cost, and that cost is reflected in tenders.
This article reflects the position of the rules at the date of checking and serves professional orientation. It does not constitute legal advice and does not replace assessment of the individual case.