April 1st, 2019 marked the day when the first French public procurement code (the "Code") entered into force. The Code aims at gathering the rules governing the award, performance and termination of public procurement agreements − mainly public procurement contracts (marchés publics) and concession agreements (contrats de concession).
All rules governing public procurement agreements in one single document
More than twenty years after the initial attempt of global codification, the first public procurement code has been enacted following the publication of (i) the Ordinance No. 2018-1074 dated 26 November 2018 about the legislative part of the Code and (ii) the Decree No. 2018-1075 dated 3 December 2018 about the regulatory part of the Code.
The Code assembles and coherently organizes around thirty laws and regulations used on a daily basis by public entities and economic operators to enter and carry out public procurement agreements.
In particular, the Code gathers (i) the Ordinances No. 2015-899 dated 23 July 2015 relating to public procurement agreements and No. 2016-65 dated 29 January 2016 relating to concession agreements as well as their implementing decrees, (ii) the law No. 85-704 dated 12 July 1985 on public project ownership (maîtrise d'ouvrage publique) and its link with private project management (maîtrise d'œuvre privée), (iii) the law No. 75-1334 dated 31 December 1975 on subcontracting and (iv) the Decree No. 2013-269 dated 29 March 2013 implementing measures to avoid late payments by public entities.
A "codification" process without major substantive modifications
The Code has been developed by integrating laws and regulations already in force ("à droit constant").
During the "codification" process only modifications required in order (i) to comply with the hierarchy of norms, (ii) to ensure editorial consistency and (iii) to correct potential material errors are − in theory − accepted.
However, the Code provides for a few substantive adjustments. The Code especially details all the available alternative dispute resolution mechanisms that can be used in public procurement agreements.
Better access to French public procurement law
The Code is an opportunity for all stakeholders in public procurement processes (mainly, granting authorities, contracting entities and economic operators) to have a better understanding of the rules that apply to them.
A reminder of the fundamental principles of the French public procurement law
Under its preliminary title (titre préliminaire), the Code details the main principles applicable to the French public procurement sector.
In particular, the Code states that:
- granting authorities are free to choose between (i) using their own resources or (ii) entering into public procurement agreements in order to meet their needs in terms of works, supplies or services (article 1); and
- when granting authorities choose to resort to the public procurement agreements, they have to respect the principle of equal treatment and ensure that the implemented procedures comply with the principles of transparency and free access (article 3).
A structure that makes the Code easier to read
As with the majority of French codes, the Code is divided into two parts: (i) the part detailing all the applicable laws (partie législative) and (ii) the part providing for all the applicable regulations (partie réglementaire).
Each part is also divided into three sections as detailed below:
- 1st Section — "Definitions and scope of application" which defines two main types of public procurement agreements (i.e. public procurement contracts and concession agreements), the main actors of the public procurement sectors (mainly, contracting authorities and entities) and the mixed agreements (i.e. agreements partially governed by the Code provisions or governed by several parts of the Code).
- 2nd Section — "the public procurement contracts", which provides for the rules applicable to public procurement contracts, partnership contracts (marchés de partenariat), public defense or security contracts (marchés de défense ou de sécurité) and some specific public procurement contracts (in particular public contracts between entities within the public sector).
- 3rd Section — "the concession agreements", which details the rules applicable to concession agreements.
An integration of well-established case-law principles
Unlike other areas of French law, administrative law is mainly based on "case law" (jurisprudentiel). This codification process was used to integrate some of the main principles of the public contracts case law into the written positive law.
In particular, the rules pertaining to the public entity's unilateral right of amendment or termination (droit de modification ou de résiliation unilatérale) of the grantor, the legal regime applicable to compulsory reversion assets in a concession agreement and the principle of continuity of public service (principe de continuité du service public) are now clearly detailed in the Code.
By clarifying basic notions and administrative law concepts, the Code enhances legal certainty (sécurité juridique) and clearly provides better access to French procurement law. As such, it could be a driver for economic growth and could induce small and medium-sized enterprises to participate in the public procurement procedures.