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What is the relevant legislation regulating the award of public contracts?
The current legislation is enacted in the Ordinance (delegated legislation) of 23 July 2015, which sets out the general rules, and two implementing Decrees of 25 March 2016 - one on public procurement contracts in general and one on public procurement in the defence sector.
Is there any sector-specific procurement legislation supplementing the general regime?
The utility procurement rules are enshrined in the above statute and decrees. The work or service concessions award rules are dealt with by the Ordinance of 29 January 2016 and its Decree of 1 February 2016. They are due to be integrated in a single code with the public procurement contracts rules by December 2018 at the latest.
There is no specific-sector legislation.
In which respect does the relevant legislation supplement the EU procurement directives or the GPA?
There are a number of supplementing rules with regard to European Union (EU) procurement directives. For instance, the Decree of 25 March 2016 bans the change in the composition of the consortium during the award process with a few exceptions (see below). The duty to divide public procurement contracts into multiple contracts is compulsory and is also subject to a simple obligation to provide motives in the case of non-division (see below). Moreover, for certain contracting authorities, there is a duty to separate the functions of designing and supervising the construction and of building with a few exceptions (Law of 12 July 1985).
Most importantly, exclusion grounds are identical to those set out in Directive 2014/24 but the consequences are harsher under French law. Article 73(b) of the Directive provides that member states shall ensure that contracting authorities have the possibility to terminate a public contract during its term with the contractor when article 57(1) of the Directive is at stake. In other words, the possibility of terminating the contract is only imposed for some of the mandatory exclusion grounds, for example, those related to bidders subject to a final judgment for certain criminal offences. French law goes beyond this and offers the possibility of terminating the contract if the contractor was, at the time of the award, in any situation worthy of exclusion, including the non-mandatory exclusion grounds. The transposition extends the right to terminate where the contractor is facing an exclusion ground at the time of the performance of the contract. In practical terms, it means, for example, that if an economic operator has shown significant or persistent deficiencies in the performance of a substantive requirement under a prior public contract, a prior contract with a contracting entity, or a prior concession contract that led to early termination of that prior contract, damages or other comparable sanctions, then the contracting authority may terminate the current contract.
Finally French law sets out specific award rules for contracts below the EU thresholds; for example, any public contract whose estimated value is above €90,000 must publish a contract notice in specific official journals (see question 11).
Are there proposals to change the legislation?
There is no current proposal to change the legislation. However, as France will adopt a new code by December 2018 to consolidate the new rules, the government is not allowed to make substantive changes to rules but is asked by the French parliament to ensure that the ‘hierarchy of norms’ is fully respected. It is, therefore, expected that when codifying the future ordinance and decrees required to create this code, it will take this opportunity to redress the potential wrongful transposition of Directives 2014/24 and 2014/25 (and 2014/23 for the concessions).
Applicability of procurement law
Which, or what kinds of, entities have been ruled not to constitute contracting authorities?
There is no case law of this kind.
Are contracts under a certain value excluded from the scope of procurement law? What are these threshold values?
In principle, any public procurement contract of any amount is included within the scope of the procurement law. Only those with estimated values of less than €25,000 (VAT excluded) are considered public procurement subject to a negotiated procedure without prior publication. However, even then, the Decree states that the contracting authority shall not contract systematically with the same economic operator (article 30.1.8 of the Decree).
Amendment of concluded contracts
Does the legislation permit the amendment of a concluded contract without a new procurement procedure?
Amendments of a concluded contract without a new procurement procedure are only authorised in the cases provided for by article 72 of Directive 2014/24.
Has there been any case law clarifying the application of the legislation in relation to amendments to concluded contracts?
There was a lot of case law prior to the implementation of article 72 of the Directive. The case law permitted amendments without retendering only if they did not lead to a substantial modification of the initial amount of the contract (ie, not more than approximately 15 per cent) or if they did not lead to a change in the subject matter of the contract. A 2017 guideline issued by the government used the former case law to illustrate some of the exceptions set out in article 72 of the 2014/24 Directive, such as circumstances that a diligent contracting authority could not foresee or a non-substantial modification of the contract.
A case from the Council of State is interesting despite the fact that the contract at stake was a concession contract since the rules are very similar: the Council ruled that an amendment was not an unlawful modification of a contract, as the modification was required due to a substantial reduction of the subject matter, and the amended contract would have interested other economic operators had the scope of the contract been so in the first place (CE 15 November 2017, Ville d’Aix-en-Provence, No. 409728).
In which circumstances do privatisations require a procurement procedure?
There is no requirement of this kind for the privatisation of public entities or functions, since an independent administrative commission the rules of which are currently set by the Ordinance of 20 August 2014, controls the conditions of privatisation.
In which circumstances does the setting up of a public-private partnership (PPP) require a procurement procedure?
PPP contracts are considered either public procurement contracts or concession contracts and, as such, are subject to their respective award procedures.
Advertisement and selection
In which publications must regulated procurement contracts be advertised?
The requirements regarding publications vary from one contracting authority to another (articles 33, 34 and 35 of the Decree of 25 March 2016).
For those contracting authorities that are public bodies within the meaning of French law (with the exception of public bodies of an industrial or commercial character) and for contracts above EU thresholds, the contract notice must be published in the Official Journal of the EU (OJEU) and in the national official journal for public procurement contracts (BOAMP). For contracts below the EU thresholds but above €90,000 (VAT excluded), they must publish either in the BOAMP or in one of the local official journals (which are local newspapers used by the local state representative to include official announcements) and, ‘if necessary’, in a sector-specific review. For contracts between €25,000 and €90,000, the contracting authority may choose freely which publications are applicable to the nature and to the estimated value of the future contract. This ‘freedom’ is nonetheless relative since the courts may check if the advertising was sufficient and, if not, they may annul the award process (see Council of State, 7 October 2005, Région Nord pas de Calais).
For the other contracting authorities and their contracts above the EU thresholds, publication must only be in the OJEU. For contracts below the EU thresholds, the contracting authorities may freely choose which publications are applicable to the nature and to the estimated value of the future contract.
However, there are exceptions with regard to social services and other specific services referred to in article 74 of the Directive 2014/24. If there are contracts below the EU thresholds, any contracting authority can choose freely which publications are applicable to the nature and to the estimated value of the future contract. For contracts above the EU thresholds, the contracting authority publishes its intention to contract by means of a contract notice, or by means of a prior information notice as set out in article 75 of the Directive 2014/24.
Are there limitations on the ability of contracting authorities to set criteria or other conditions to assess whether an interested party is qualified to participate in a tender procedure?
There are no specific limitations since the transposing statute and Decrees are strictly in line with Directives 2014/24 and 2014/25 in this regard.
Is it possible to limit the number of bidders that can participate in a tender procedure?
Article 47 of the Decree of 25 March 2016 provides for such a possibility on the condition that the contract notice or the invitation to confirm interest sets out objective and non-discriminatory criteria, the minimum number and the maximum number of bidders. In principle, the minimum number must be set so as to allow for sufficient competition. However for certain award procedures, the Decree is more precise: the minimum number is five for restricted procedures and three for competitive procedures with negotiation and competitive dialogue.
Regaining status following exclusion
How can a bidder that would have to be excluded from a tender procedure because of past irregularities regain the status of a suitable and reliable bidder? Is the concept of ‘self-cleaning’ an established and recognised way of regaining suitability and reliability?
The concept of ‘self-cleaning’ has recently been introduced under French law with the transposition of the 26 February 2014 Directives. However, the possibility of self-cleaning only exists in four cases:
- where the contracting authority has received sufficiently plausible indications to conclude that the economic operator has entered into agreements with other economic operators aimed at distorting competition;
- where there is a distortion of competition from the prior involvement of the economic operators in the preparation of the procurement procedure;
- where the economic operator has shown significant or persistent deficiencies in the performance of a substantive requirement under a prior public contract, a prior contract with a contracting entity, or a prior concession contract that led to early termination of that prior contract, damages or other comparable sanctions; or
- where the economic operator has undertaken to unduly influence the decision-making process of the contracting authority, to obtain confidential information that may confer upon it undue advantages in the procurement procedure or to negligently provide misleading information that may have a material influence on decisions concerning exclusion, selection or award.
No specific measures for self-cleaning are specified.
This reduced scope of self-cleaning raises some compatibility concerns with EU law since article 57.6 of Directive 2014/24 provides that any economic operator that has been the subject of a conviction by final judgment regarding specified criminal offences may demonstrate its reliability despite the existence of a relevant ground for exclusion.
The procurement procedures
Does the relevant legislation specifically state or restate the fundamental principles for tender procedures: equal treatment, transparency and competition?
Yes it does, in article 1 of the Ordinance of 23 July 2015.
Independence and impartiality
Does the relevant legislation or the case law require the contracting authority to be independent and impartial?
The impartiality principle stems from the case law and is also applicable to advisers of contracting authorities intervening in the award process (see, for example, Council of State, 24 June 2011, Minister of Ecology).
Conflicts of interest
How are conflicts of interest dealt with?
There are no provisions other than those provided by the EU directives, for instance, article 57 allows for the exclusion of an economic operator where a conflict of interest within the meaning of article 24 cannot be effectively remedied by other less intrusive measures. To our knowledge there is no case law regarding public procurement.
However, in more general terms, there is case law that is applicable to public procurement regarding the wrongful participation (because of personal or business interest) of public agents in the adoption of any administrative act. There is also a specific criminal offence called ‘the illegal taking of interest’: article 432-12 of the criminal code reads:
The taking, receiving or keeping of any interest in a business or business operation, either directly or indirectly, by a person holding public authority or discharging a public service mission, or by a person holding a public electoral mandate who at the time in question has the duty of ensuring, in whole or in part, its supervision, management, liquidation or payment, is punished by five years’ imprisonment and a fine of €75,000.
Finally, a recent statute put in place new rules in order to prevent risks of conflicts of interest in any area linked to the public sphere (Law No. 2013-907 of 11 October 2013, regarding the transparency of public life).
Bidder involvement in preparation
How is the involvement of a bidder in the preparation of a tender procedure dealt with?
There is no prohibition in the statutes. However, the case law holds that, depending on the circumstances, a bidder that took part in the preparation of the tender procedure cannot be excluded per se, but shall be excluded if there are no other means to ensure the equality between bidders (CE 29 July 1998, Génicorp).
What is the prevailing type of procurement procedure used by contracting authorities?
The type of procurement procedures that prevail, in practice, are the open or restricted procedures, both because of the conditions set for the use of other procedures and the traditional suspicion regarding negotiated procedures that allegedly lack transparency.
Separate bids in one procedure
Can related bidders submit separate bids in one procurement procedure?
Yes, related bidders can submit separate bids unless they do not have sufficient autonomy to one another, since the courts apply competition law to contracting authorities they must make sure that by awarding a contract they would not favour a collusive agreement or breach competition rules.
Negotiations with bidders
Is the use of procedures involving negotiations with bidders subject to any special conditions?
Yes, the conditions are the same as those set out in article 24.4 of the Directive 2014/24 for contracting authorities. However, there are no conditions for contracting entities allowed by Directive 2014/25.
If the legislation provides for more than one procedure that permits negotiations with bidders, which one is used more regularly in practice and why?
There is no data on this, but it seems that French contracting authorities are keen to use competitive dialogues, especially for complex contracts, probably as France anticipated the introduction of the competitive dialogue at EU level in 2004 by introducing a similar procedure in 1994 called ‘bidding on performance’. They also use the competitive procedure with negotiation in certain sectors, such as the defence sector, as traditionally it was not subject to any conditions of use.
What are the requirements for the conclusion of a framework agreement?
The requirements are identical to those set in the directives.
May a framework agreement with several suppliers be concluded?
Such a framework agreement may be concluded and, in that case, the awarding of subsequent contracts is subject to competition as set out in article 33.2 of Directive 2014/24.
Changing members of a bidding consortium
Under which conditions may the members of a bidding consortium be changed in the course of a procurement procedure?
Article 45 of the Decree of 25 March 2016 forbids, in principle, the change of consortium in the course of a procurement procedure with a few exceptions: restructuring of one bidder, or, if the consortium proves that one member cannot accomplish its task for a reason outside its will, the consortium can remain on course with the possibility of proposing a new participant or subcontractor, whose capacity will be analysed by the contracting authority along with the rest of the new consortium.
Participation of small and medium-sized enterprises
Are there specific mechanisms to further the participation of small and medium-sized enterprises in the procurement procedure? Are there any rules on the division of a contract into lots? Are there rules or is there case law limiting the number of lots single bidders can be awarded?
Prior to the new directives, there have been attempts to favour small and medium-sized enterprises (SMEs). For instance, a governmental guideline asked to favour SMEs by drawing lots adapted to SMEs (circular of 20 January 1994).
The provision of a decree that imposed a minimum number of SMEs at the bidder selection stage was, however, declared unlawful as it was contrary to the principle of equal treatment (CE 9 July 2007).
Nowadays, SMEs can see their participation level up by all the means provided by the directives. In addition, the duty to divide a contract into lots has been compulsory since 2006. The exceptions are identical to the examples of reasons, quoted in recital 78 of Directive 2014/18, that can be given by a contracting authority for not dividing into lots:
- the risk of restricting competition;
- the risk of rendering the execution of the contract excessively technically difficult or expensive; or
- if the need to coordinate the different contractors for the lots could seriously risk undermining the proper execution of the contract.
Finally, the PPP contracts subject to the procurement rules have specific rules regarding SMEs: the share of the forthcoming contract that will be performed by SMEs is a compulsory award criterion and at least 10 per cent of the PPP contract must be allocated to SMEs.
Prior to the 2014 Directives, the case law already illustrated the possibility of limiting the number of lots single bidders can be awarded. For instance, a contracting authority is right to limit to one geographical lot the award of a contract for the supply of DNA tests on the grounds that it will secure future supplies and that it will also secure the competitive nature of this niche market, (The French Supreme Administrative Court adopts a strict approach with regard to equal treatment of bidders in case of a false information from the contracting authority (Dynacité), Concurrences, 12 March 2012).
What are the requirements for the admissibility of variant bids?
For contracts subject to a regulated procedure (ie, open or restricted, competitive procedure with negotiation, competitive dialogue), variants are forbidden unless otherwise stated in the contract notice or in the invitation to confirm interest.
For contracts subject to the adapted procedure (ie, a procedure that characters are freely set by contracting authorities), it is the other way around: variants are allowed unless explicitly forbidden in the contract notice or in the invitation to confirm interest (article 58.I of the Decree of 25 March 2016).
Must a contracting authority take variant bids into account?
Once the variant is admitted, a contracting authority must take it into account.
Changes to tender specifications
What are the consequences if bidders change the tender specifications or submit their own standard terms of business?
Bidders cannot change the tender specifications without being excluded from the award. But they can submit their standard terms of business that are valid if signed by the contracting authority, if not contrary to the contract documents established by the contracting authority and if not contrary to public order or general principles applicable to public contracts. For instance, a standard clause by which the economic operator can terminate the contract in case of late payment is valid only if the application of the clause leaves enough time for the regularisation of the payment and if there is no general interest reason for maintaining the contract (CE 8 October 2014, Société Grenke location).
What are the award criteria provided for in the relevant legislation?
The limitations are identical to those set out in article 67 of Directive 2014/24 - they are non-discriminatory criteria and they must have a link with the subject matter of the contract, and a duty to weigh the criteria. However, French law restricts the use of price as the sole award criterion to contracts whose subject matter is services or supplies that are standardised and whose quality is unlikely to vary from one economic operator to another.
Abnormally low bids
What constitutes an ‘abnormally low’ bid?
There is no written legal definition of an abnormally low bid or tender in French law or in the directive. It should be referred to case law that has a case-by-case approach.
What is the required process for dealing with abnormally low bids?
The process is identical to the one set out in article 69 of Directive 2014/24.
Which authorities may rule on review applications? Is it possible to appeal against review decisions and, if so, how?
There are no administrative authorities in charge of reviewing the award decisions; only the courts are competent.
Owing to the private and public law divide under French law, challenges to award decisions may be lodged either before the administrative courts if the contract is of administrative character, or before civil courts if it is a civil matter. A public procurement contract is of administrative character if awarded by a public body within the French meaning or, very exceptionally, when awarded by a publicly owned entity regulated by private law under very specific circumstances set by the case law (ie, if the private entity acts as an agent of a public body on his or her behalf, or on his or her account).
The main route to reviewing the award process is the pre-contractual remedy. The appeal goes directly before the Council of State or the Court of Cassation and is limited to questions of law with a time limit of 15 days.
If more than one authority may rule on a review application, do these authorities have the power to grant different remedies?
Timeframe and admissibility requirements
How long do administrative or judicial proceedings for the review of procurement decisions generally take?
Regarding the pre-contractual remedy put in place since 1992, it takes a maximum of 20 days in front of the courts of first instance of both the administrative courts and civil courts. The appeal takes approximately two months in practice. If the remedy sought is damages then it will take approximately two years.
What are the admissibility requirements?
The standing for action is limited to any person who may have had an interest in bidding regarding their field of interest and not only to those who participated in the process or were deprived of a chance to participate as was the case prior to 1995. There is no standing for action requirement for the European Commission or the local state representative challenging the award of a contract by a regional or local authority.
For a long time, any legal ground was accepted in front of the courts with the effect, proved by a 2006 Organisation for Economic Co-operation and Development (OECD) report, that more than half of the challenges were successful. Since 2008 for administrative courts (and more recently for civil courts), only alleged breach of award rules that have harmed or are likely to have harmed the applicant are acceptable (CE 3 October 2008, SMIRGEOMES).
This new requirement has been extended to a new remedy created by the Council of State case law and called the Tarn-et-Garonne remedy (see question 37).
What are the time limits in which applications for review of a procurement decision must be made?
For the pre-contractual remedy the time limit is correlated to the award process: the challenge can be lodged up until the contract is signed.
For the contractual remedy introduced in 2009 by way of implementation of the 2007 Directive on Review of Public Procurement Contracts, the time limit is 30 days after the post-award notice is published or six months after the signature of the contract, if no post-award notice was published.
There is also the possibility of lodging another challenge as set by the Council of State in a 2007 case reformed in the 2014 Tarn-et-Garonne case for which the time limit is two months.
For damages, the time limit is four years from the first January following the breach that causes the harm.
Does an application for review have an automatic suspensive effect blocking the continuation of the procurement procedure or the conclusion of the contract?
The pre-contractual remedy has an automatic suspensive effect: once the challenge is lodged before a court and the contracting authority informed of it by the applicant, the award process is automatically suspended until the court takes steps regarding the legality of the award process. There is no possibility of lifting the automatic suspensive effect.
Neither the contractual remedy, the Tarn-et-Garonne remedy or the remedy of damages have an automatic suspensive effect, but, for the two former remedies, the court may decide to suspend the execution of the contract until its decision is made.
Approximately what percentage of applications for the lifting of an automatic suspension are successful in a typical year?
Notification of unsuccessful bidders
Must unsuccessful bidders be notified before the contract with the successful bidder is concluded and, if so, when?
Unsuccessful bidders must be notified for any regulated procedure but no time limit is set for the contracting authority to notify them. However, the award of the contract cannot be made before a period of 11 days after notification, if the latter is sent by electronic means, or 16 days if sent by mail.
Access to procurement file
Is access to the procurement file granted to an applicant?
Access is not granted, unless the applicant asks for the communication of any administrative documents related to the award process. In case of refusal, he or she may enlist the Commission for Access to Administrative Documents (CADA), an independent administrative authority, to obtain the relevant document.
Is it customary for disadvantaged bidders to file review applications?
It is quite frequent for an unsuccessful bidder to file review applications. There is no recent data on this, but the OECD 2006 report quoted above mentions an average of 4,000 challenges a year.
Violations of procurement law
If a violation of procurement law is established in review proceedings, can disadvantaged bidders claim damages?
Disadvantaged bidders can claim to be compensated from the bid costs if they were deprived of any chance to win the award; that is, if they have no reason to be excluded from the award process, in the absence of exclusion grounds and if they had the financial and technical capacity to carry out the contract. If they can prove they had a serious chance of winning the contract initially, had the violation not occurred, they might even be awarded damages for loss of profits, irrespective of whether they later had the capacity to run several contracts at the same time.
May a concluded contract be cancelled or terminated following a review application of an unsuccessful bidder if the procurement procedure that led to its conclusion violated procurement law?
A concluded contract may be terminated on the grounds that its conclusion violates procurement law. Regarding the contractual remedy, the arguments to be invoked are quite limited:
- an absence of advertising or an absence of the OJEU;
- not respecting the award rules of a framework agreement at the award of the subsequent contract stage; or
- not respecting the suspensive effect of the pre-contractual remedy.
Is legal protection available to parties interested in the contract in case of an award without any procurement procedure?
There is a possibility of challenging this direct award through the contractual remedy within the above-mentioned time limit: six months after the signature of the contract. However, it may happen that no one is aware of the signature of contract, unless its consequences are visible, such as the starting of new public works.
What are the typical costs of making an application for the review of a procurement decision?
For the most common - and efficient - remedy used, that is, the pre-contractual remedy, legal costs are generally between €5,000 and €10,000 before administrative courts of first instance. However, there is no requirement to hire a lawyer to introduce a claim.