1 Please summarise briefly any relationship betweenthe public procurement / government contracting laws in your jurisdiction andthose of any supra-national body (such as WTO GPA, EU, UNCITRAL).
The Frenchpublic procurement laws, as with any other country in the EU’sjurisdiction, are substantially determined by European laws.Public procurement is a major component of the common European market, which finds concrete translation in the principles ofpublic procurement.
The EU is amember of the WTO Government procurement agreement (GPA). Therefore, members ofthe European union must comply with GPA’s provisions. Public procurementcontracts also have to comply with the ECHR case laws and other supra-national bodies.
The Frenchregulations can also find inspiration in soft law instruments such as the UNCITRAL Model Law onPublic procurement.
2 What types of public procurement / governmentcontracts are regulated in your jurisdiction and what procurement regimes applyto these types of procurements?
In addition to any central government procurement regime please address the following: regulated utilities suppliers (e.g. water, gas, electricity, coal, oil, postal services, telecoms, ports, airports) military procurements non-central government (local, state or prefectures) and any other relevant regime. Please provide the titles of the statutes/regulations that regulates such procurements.
The followinglaws regulate public procurement in the EU :
● Directive 2014/24/EU on publicprocurement
● Directive 2014/25/EU onprocurement by entities operating in water, energy, transport andpostal services sectors
● Directive 2014/23/EU on theaward of concession contracts
● Directive 2009/81/EC on defenceand sensitive security procurement
● Regulation No 1370/2007 onpublic passenger transport services by rail and by road
● Remedies Directive for thepublic sector (Directive 89/665/EEC)
● Remedies Directive for theutilities sector (Directive 92/13/EEC)
● Both Remedies Directives weresubstantially amended by Directive 2007/66/EC.
Under the French legislation a Code of public procurement contains the regime applicable to all public procurement. The fundamental principles are defined in articles L1 to L6 of this Code. The Code distinguishestwo main categories ofcontracts:
● Marchépublics (called public procurement under the Directive 2014/24/EU)
● Concessioncontracts (Directive 2014/23/EU)
Specialregulations are provided for military procurements. The Code also containsspecific regimes for complex contracts such as: Public private partnerships.
Three differentregimes apply to public procurement contracts:
● Above EU financial thresholds: Formalised procedures with prior publicationand competition;
● Above national financial thresholds: Adapted procedures with terms and conditionsdecided by the contracting authority;
● Below national financial thresholds: Without priorpublication and competition.
3 Are there specified financial thresholds at whichpublic procurement regulation applies in your jurisdiction? Does the financial threshold differ dependingon the nature of procurement (i.e. for goods, works or services) and/or the sector(public, utilities, military)? Pleaseprovide all relevant current thresholds in your jurisdiction.
The generalprinciples of the public procurement regulations are applicable to any contractconcluded for valuable consideration by a purchaser or a licensing authority,to meet its needs for works, supplies or services.
Financialthresholds related to the nature of procurement and the purchasing sector areset to decide the type of competition procedures required.
EU financial thresholds are accessible via the following link :
Frenchthresholds are accessible via the following link:
4 Are procurement procedures below the value of the financialthresholds specified above subject to any regulation in your jurisdiction? If so, please summarise the position.
Any contractbelow the value of the national financial thresholds is made under a procedurewithout prior publication and competition.
However, theseprocedures must comply with the public procurement principles:
● Non-discrimination/equal treatment;
5 For the procurement of complex contracts*, how are contracts publicised? What publication or journal is used for these purposes? What is the typical period from the publication of the advert that bidders have to respond to the advert for a complex contract?
The competitive procedure with negotiation, the competitive dialogueand the innovation partnership aim to provide flexibility for complexpurchases. Therefore, the complexity of the contract is a required condition toselect these procedures.
A contractnotice, commonly referred to as a "Notice of Public Call for Competition(NCCC)" is publicised in the BOAMP and in the OJEU. The minimum periodrequired between the publication of the advert and the bidder’s respond is 30days.
The contract isalso publicised within 30days of its conclusion atthe BOAMP and the OJEU.
6 For the procurement of complex contracts, where there is an initialselection stage before invitation to tender documents are issued, what aretypical grounds for the selection of bidders?
If there are differences in methodology betweendifferent regulated sectors (for example between how a utility might undertakea regulated procurement procedure and how a government department might do so),please summarise those differences?
The competitive procedure with negotiation, the competitive dialogueand the innovation partnership aim to provide flexibility for complexpurchases. Therefore, the complexity of the contract is a required condition toselect the competitive dialogue.
These procedureshave an initial selection stage. The tenders have to ask to participate inresponse to the contract notice publicised. The contracting authority selects aminimum of three candidates for their capacity to perform the contract, or in the case of an innovationpartnership, for theircapacity to offer innovative solutions.
7 Does your jurisdiction mandate that certain biddersare excluded from tendering procedures (e.g. those with convictions for bribery)? If so what are those grounds of mandatoryexclusion?
Does your jurisdiction specify discretionary grounds of exclusion? If so, what are those grounds of discretionary exclusion?
The Frenchpublic procurement Code sets mandatory grounds for exclusion. Any tenders convicted for variouspenal laws such as corruption, fraud, money laundering, or a breach ofobligations relating to the payment of taxes or social security contributions are excluded from the procedures.
Discretionary grounds are alsoset to avoid cases ofconflicts of interest, significant or persistent deficiencies in theperformance of public contracts, undertaking serious misrepresentation insupplying information, orunduly influencing the decision-making process of the contracting authority.
8 Please described a typical procurement procedure for a complexcontract.
Please summarise the rules that are applicable in suchprocedures.
Please include a timeline that includes the key stagesof the process, including an estimation for the total length of the procedure.
A typicalprocurement procedure for complex contracts (such as competitive procedure withnegotiation or competitive dialogue) includes three key stages.
● Theprocedure starts with the definition of the needs, the publication of thecontract notice and the preselection of the tenderers. This stage takes atleast 6 weeks.
● Thecontracting authority starts a dialogue with the shortlisted economic operators.This stage has no legal limitation in terms of duration. This process can last from a few months to more than a year.
● The laststage is the selection and evaluation of the offers evaluated on the basis ofthe most economically advantageous tender criteria. This stage takes at least amonth. Indeed it is mandatory to respect a standstill period of 16 days beforethe conclusion of the contract.
As a result, thetotal length of such a procedure is at least six months. Actually, complex contractual arrangementsthat include a stage of negotiation can last years.
9 If different from the approach for a complex contract, please describe how a relatively low value contract would be procured?
(For these purposes please assume the contract in question exceeds the relevant threshold for application of the procurement regime by less than 50%)
The contractprocedures below the national thresholds (40 000€) are free to be madewithout prior publication and competition. This threshold is raised untilJuly 22nd, 2021 to70 000€.
However as stated before, these contracts must respectthe key principles of publicprocurement. As a good practice, the contracting authority organizes a short competition betweenthree tenderers.
10 What is seen as current best practice in terms of the processes to be adopted over and above ensuring compliance with the relevant regime, taking into account the nature of the procurement concerned?
To avoid any requalification risk,the contracting authority can choose the most demanding procedure.
For ensuringcompliance with the relevant regime, the contracting authorities are alsoprofessionalizing their agents. Hiring experts and set-up commissions to evaluateoffers become common practice.This approach is key to ensuring good definition of the needs, and decreases the potential asymmetry ofinformation between the contracting authority and economic operators. Theconclusion of the contract is mandatory and is preceded by a standstill period exceeding theEU financial threshold. A good practice is also to respect a stand still periodfor other procedures.
Theimplementation of provisions concerning conflicts of interest and distortion ofmarket competition is also a good practice directly linked with the smoothrunning of the procedure.
The developmentof CSR criteria and risk based due diligences, which allow extra-financial assessment of thetenderers, are also goodpractices that are incentivisedby compliance provision such asin/ for example Loi SapinII (the French version of the FCPA).
11 Please explain any rules which are specifically applicable to the evaluation of bids.
First, thecontracting authority eliminates irregular, unacceptable, and inappropriateoffers. When the procedure allows it, the contracting authority offers thepossibility to correct the bid. Abnormally low offers are also discarded togive place to the bidder to justify the price.
The evaluation and selection of bids is based on the criterion of the “most economically advantageous tender”.
If the price is most often decisive, the choice can also be made according to technical criteria or to conditions of execution. 12 Please describe any rights that unsuccessful bidders have that enable them to receive the reasons for their score and (where applicable in your jurisdiction) the reasons for the score of the winning bidder.
Are regulated procuring bodies required to provide these reasons for their award decision before awarding the contract in question?
As soon as thecontracting authority has made their choice, they are obliged to inform theunsuccessful bidders that the offer has not been accepted.
For thecontracts exceeding the EU financial thresholds, it is mandatory to notify the reasons for the rejection, however the contracting authority is only obliged to communicatethe chosen bid to the unsuccessful bidder who requests it. The contracting authority has to respect a period beforethe conclusion of the contract. Those 16 days (11 for an electronicnotification) allows the unsuccessful bidders to refer any matter to the judgeusing a simplified procedure: the pre-contractual referral.
In the case of aprocedure exceeding the national financial thresholds it is only mandatory tocommunicate the reasons for the rejection and to communicate the chosen bid to the bidder whorequests for it.
13 What remedies are available to unsuccessful biddersin your jurisdiction? In whatcircumstances (if any) might an awarded contract be terminated due to a court'sdetermination that procurement irregularity has occurred?
● During the “standstill” period (the 16 or 11 days mentioned above), any unsuccessful bidder can bring a pre-contractualreferral. This emergency procedure is closed after the conclusion of thecontract. The unsuccessful bidder can only invoke breaches related to the rulesof publicity and competition. It must be shown by the applicant that the breachhas caused or is likely to cause injury or damage. The chances of success are generally quite slim.
● Within 31 days after the publication in the OJEU, it is possible to exercise a contractual referral if the bidder didn’t bring a pre-contractual referral. This remedy meets the same requirements as the pre-contractual referral. The cancellation of the contract is more difficult because it has already been concluded. Duringthe life of the contract, an unsuccessful bidder who is able to prove/demonstrate prejudice in the conclusion/outcome of the contract, is able to refer the matter to the judge. This remedy is open for twomonths after the publication of the contract. The judge can cancel or interrupt the contract.
14 Are public procurement law challenges common in your jurisdiction?
Is there a perception that bidders that makechallenges against public bodies suffer reputational harm / harm to theirprospects in future procurement competitions? If so, please provide brief comment. Assuming a full hearing isnecessary (but there are no appeals), how much would a typical procurementclaim cost :( (i) for the defendant and for the (ii) claimant?
Publicprocurement law challenges are common in France. Very few result in the cancelation ofthe contract. The unsuccessful bidders must prove that the choice of thecontracting authority is the consequence of the invocated breach.
Fees depend onthe chosen law firm and the complexity of the case. It is possible to obtainthe reimbursement of the costs from the losing party.
15 Typically, assuming a dispute concerns a complexcontract, how long would it take for a procurement dispute to be resolved inyour jurisdiction (assuming neither party is willing to settle its case).Please summarise the key stages and typical duration for each stage.
Before tribunal,the average time between the filing of a motion and its judgment is betweenseven months and two and a half years, depending on the nature and difficultyof the case.
The good news is that the judge has created emergency procedures for public procurement. For pre-contractual and contractual referral, the judge makes a decision within a period ranging from a few days to a month.
Note that appeals to the supreme court are often useless, because it is non-suspensive.
16 What rights/remedies are given to biddersthat are based outside your jurisdiction? Are foreign bidders rights/remedies the same as those afforded tobidders based within your jurisdiction? To what extent are those rights dependent on whether the host state ofthe bidder is a member of a particular international organisation? (i.e. GPA orEU)
Foreign biddersare given the same rights and remedies granted to national bidders.
17 Where an overseas-based bidder has a subsidiary in your territory, whatare the applicable rules which determine whether a bid from that bidder wouldbe given guaranteed access to bid for the contract? Would such a subsidiary be afforded thesame rights and remedies as a nationally owned company bidding in yourjurisdiction?
Overseas-basedbidders with subsidiaries in France are given the same rights and remedies asnationally owned companies.
18 In your jurisdiction is there a specialist court ortribunal with responsibility for dealing with public procurement issues? In what circumstances will it havejurisdiction over a public procurement claim?
Publicprocurement issues are shared between administrative and judicial courts. Thecourts’ jurisdictiondepends on the legal personality of the contracting authority. Administrativecourts deal with contracts made by public entities, whereas judicial ones have jurisdiction over publicprocurement contracts which have been made by private companies. Most often, the administrative courts are competent.
19 Are post-award contract amendments/variations to publically procured,regulation contracts subject to regulation in your jurisdiction? Are changes tothe identity of the supplier (for example through the disposal of a businessunit to a new owner or a sale of assets in an insolvency situation) permittedin your jurisdiction?
Any substantialmodification could lead to the necessity of terminating thecontract and procuring a new one. Changes in the identity of thesupplier are considered to be a substantial modification.
There are twohypotheses in which the change in supplier is not a substantial change:
● Themodification is provided by a clause;
● After arestructuring operation of the supplier, if it does not lead to other substantial modifications.
20 How common are direct awards for complex contracts (contract awardswithout any prior publication or competition)? On what grounds might a procuring entity seek to make a direct award? Onwhat grounds might such a decision be challenged?
Direct awardsare legal where the works, supplies or services can be supplied only by aparticular economic operator for technical or artistic reasons or for theprotection of an exclusive right.
An unsuccessfulprocedure is also a legal justification for the direct awardof contracts.
In the case ofin-house contracts, i.e. when the contracting party is merely an extension ofthe public entity, contracts concluded between these two functionally identicalentities are not subject to the rules of public procurement, and therefore tothe rules of competitive bidding.
These casesremain exceptional. The contracting authorities bear the burden of proof forthe justifying circumstances.
Within a periodof 2 months, the contract can be challenged by a third party who justifies any prejudice in the conclusion of the contract.
21 Have your public procurement rules beensufficiently flexible to allow contracting authorities to respond to theCOVID-19 pandemic? What measures havebeen most used and in what areas have any difficulties arisen? Is it likely that lessons learned fromprocurement during this period will give rise to longer term changes?
Covid-19 has changed the dailylife of public purchasers in just a few months. In legal terms, they have hadto incorporate new changes to public procurement regulations, such as the"Asap" law which came into effect on the 7th December2020, and which notablyraised the threshold for work contracts up to €100,000 until 2022, and introduced the possibility of awardingcontracts by mutual agreement for reasons of general interest.
During this period of increased health emergency, when an existing contract has expired by two months, (i.e. at this stage until 24 July2020) and it is impossible to organise a new competitive tendering procedure orto complete one in time before the expiry of the current contract, it ispossible to extend this contract by means of an amendment beyond the initialterm.
If the holder ofa contract is unable to perform the services which are the subject of thecontract or a purchase order, the purchaser may conclude a substitute contracteither on the grounds of simple urgency or on the grounds of extreme urgency,if he fulfils the conditions thereof.
The Coronavirushealth crisis is clearly an unforeseen circumstance which may justifymodifications, provided that the contracting authority can demonstrate a causallink between the consequences of the crisis and the need to modify thecontract, as well as the strictly necessary nature of the modifications itwishes to make to the contract.
The COVID-19pandemic gave rise to long term changes. The crisis has boosteddematerialisation and the deployment of new solutions, such asvideoconferencing. These changes and the development of new tools willundoubtedly continue long- term.