Public procurement regulation in France

June 2021

• Public procurement notifications can be found in the online version of the Bulletin Officiel des Annonces des Marchés Publics (BOAMP). Wherethe value of the contract exceeds European public procurement directive thresholds, contract notices may also be found in the Official Journal of the European Union (OJEU).
• Contract notices can also be published in newspapers authorized to publish legal announcements.
• Other media can also be used, especially for contracts with limited value, such as specialized publications (e.g., Le Moniteur des Travaux publics), local papers or specific websites.

The French public procurement code (code de la commande publique (hereinafter the “CCP”)) provides for intermediary thresholds in addition to those resulting from European directives. Nevertheless, the fundamental principles of public procurement, such as equal access to public procurement and transparency, must be observed regardless of the value of the contract (even below EUR 40,000; this and all following amounts in EUR are always understood without VAT).

• Contracts below EUR 40,000 may be concluded without prior publication; the same applies to lots whose amount is below EUR 40,000 when the conditions provided for in article R2123-4 of the CCP are met. The contracting authority must nevertheless choose a relevant offer, make good use of public money and refrain from systematically contracting with the same economic operator when the contracting authority’s needs may be met by several other operators (art. R2122-8 and R2123-4 of the CCP).
• The conditions for the publication and competition processes can be freely determined by the contracting authority (procédure adaptée), provided they are adapted to the object and specifics of the contract, the number and location of the economic operators likely to be interested in the contract and the circumstances of the contract to be concluded for (i) contracts whose estimated value is below the thresholds mentioned below and for (ii) lots of a contract whose estimated value is equal to or exceeds the European thresholds when the following two conditions are met: (a) the estimated value of each concerned lot is below EUR 80,000 for supply and services contracts or EUR 1,000,000 for works contracts and (b) the aggregate value of these lots does not exceed 20% of the total estimated value of the contract (art. R2123-1, 1° and 2° and R2123-4 of the CCP).
• Contracting authorities may also resort to the procedure referred to as “adaptée”, regardless of the value of the relevant contract, for contracts for social and other specific services (art. R2123-1, 3° of the CCP).
• For contracts worth between EUR 90,000 and the thresholds mentioned below, when the contracting authority is the French State, a public national institution that does not have an industrial and commercial nature (établissement public de l’Etat autre qu’à caractère industriel et commercial), a public local entity, institution or grouping (collectivité territoriale, établissement public local or groupement de collectivités territoriales), a contract notice has to be published either in the BOAMP or in a newspaper authorized to publish legal announcements. The contracting authority must decide whether, according to the nature or amount of the products, services or works concerned, a notice in a specialized newspaper for the economic sector involved or in the OJEU is also necessary to guarantee the appropriate information reaches any reasonably vigilant economic operators that might be interested in the contract (art. R2131-12, 2° of the CCP).

• For contracts whose values exceed the European thresholds, a contract notice also has to be published in the OJEU.

• The contracting authority is free to choose among the open and the restricted procedure (appel d’offres ouvert or appel d’offres restreint) (art. R2124-2 of the CCP).
• Contracting authorities may use a negotiated procedure without prior publication of a contract notice (marché passé sans publicité ni mise en concurrence préalables), in the specific cases and circumstances referred to in articles R2122-1 and following of the CCP:
  • insofar as is strictly necessary when, for reasons of extreme urgency brought about by events unforeseeable by and not attributable to the contracting authority, the time limits for the open procedure, restricted procedure, negotiated procedure with prior publication or competitive dialogue cannot be complied with (art. R2122-1 of the CCP);
  • where no tenders, no suitable tenders, no requests to participate or no suitable requests to participate have been submitted in response to (i) an open procedure or a restricted procedure carried out by a contracting authority, (ii) a tender procedure carried out by a contracting entity, or (iii) a tender procedure related to (a) a contract whose value is below the European thresholds or (b) related to social or other specific services, provided the initial conditions of the public contract are not substantially altered (art. R2122-2 of the CCP);
  • where the works, supplies or services can be supplied only by a particular economic operator for any of the following reasons: (i) the aim of the procurement is the creation or acquisition of a unique work of art or artistic performance; (ii) for technical reasons; (iii) the protection of exclusive rights, including intellectual property rights (art. R2122-3 of the CCP);
  • regarding public supply contracts, (i) for additional deliveries by the original supplier intended either as a partial replacement of supplies or installations or as the extension of existing supplies or installations where a change of supplier would oblige the contracting authority to acquire supplies having different technical characteristics that would result in incompatibility or disproportionate technical difficulties in operation and maintenance; the duration of such contracts as well as that of recurrent contracts must not, as a general rule, exceed three years; (ii) for supplies quoted and purchased on a commodity market (art. R2122-4 of the CCP);
  • for the purchase of supplies or services on particularly advantageous terms, from either a supplier definitively winding up its business activities, or, subject to article L2141-3 of the CCP, a supplier under a procedure set forth by Book VI of the French commercial code (except those referred to in Title I), or a similar procedure under the national laws of another State (art. R2122-5 of the CCP);
  • for public service contracts, where the contract concerned follows a design contest and is to be awarded to the winner or one of the winners of the design contest; where there are several winners in the design contest, all must be invited to participate in the negotiations (art. R2122-6 of the CCP);
  • for new works or services consisting of the repetition of similar works or services entrusted to the economic operator to whom the same contracting authority awarded the original contract after publication and putting into competition; the possible use of this procedure for similar works or services must be provided for in the original contract and the total estimated cost of the subsequent works or services must be taken into consideration when the original contract is concluded; this procedure may only be used during the three years following the conclusion of the original contract (art. R2122-7 of the CCP);
  • (i) for public procurement valued below EUR 40,000 or (ii) lots valued below EUR 40,000 when the condition set forth in 2° b of article R2123-1 of the CCP is met (art. R2122-8 of the CCP);
  • below EUR 90,000, for supplies of non-school books concluded by contracting authorities referred to in 1° and 2° of article 3 of Act n° 81-766 of 10 August 1981, for their own needs or the enrichment of library collections for the public (art. R2122-9 of the CCP);
  • regarding contracting authorities seeking public supply contracts, where the products involved are manufactured purely for the purpose of research, experimentation, testing, or development and not with the aim of ensuring profitability or recovering research and development costs (art. R2122-10 of the CCP);
  • regarding contracting entities, where (i) the contract is concluded for the purpose of research, experimentation, testing, or development and not with the aim of ensuring profitability or recovering research and development costs; (ii) it is possible to procure supplies by taking advantage of a particularly advantageous opportunity available for a very short time at a price considerably lower than the normal market price (art. R2122-11 of the CCP).
• Contracting authorities may apply a competitive procedure with negotiation (procédure avec négociation) or competitive dialogue (dialogue compétitif) in the specific cases and circumstances referred to in article R2124-3 of the CCP:
  • the needs of the contracting authority cannot be met without adapting readily available solutions;
  • the needs of the contracting authority include innovative solutions;
  • the public contract contains design services;
  • the contract cannot be awarded without prior negotiations because of specific circumstances related to the nature, the complexity or the legal and financial make-up of the contract or because of the risks attached to it;
  • the technical specifications cannot be established with sufficient precision by the contracting authority with reference to a standard, European technical assessment, common technical specification or technical reference;
  • where all tenders submitted in response to an open or restricted procedure were irregular or unacceptable within the meaning of articles L2152-2 and L2152-3 of the CCP, provided the initial conditions of the public contract are not substantially altered. The contracting authority need not publish a contract notice where it only includes in the procedure the tenderers that, during the prior open or restricted procedure, submitted tenders in accordance with the formal and deadline requirements of the procurement procedure. Tenderers may only participate in the procedure if they have first proved that they are not excluded from participation and that they meet the participation conditions set out by the contracting authority.
• In the utility services sectors, the use of the negotiated procedure with prior publication (procédure avec négociation) and the competitive dialogue (dialogue compétitif) by contracting entities is always possible (art. R2124-4 and R2124-6 of the CCP).

An appeal is possible against the tendering procedure and the contract awarded itself.

• The applicable time limit depends on the type of appeal filed by the claimant:
  • interlocutory procedure before the execution of the contract (référé précontractuel) regarding breaches of freedom of access to public procurement or equal treatment: before the conclusion of the contract (i.e. usually before the standstill period expires);
  • interlocutory procedure after the execution of the contract (référé contractuel) for a limited number of breaches (i.e. to sanction the contracting authority when it has made it impossible for the economic operator to file a référé précontractuel: see point 10. below): either (i) 31 days after the publication or notification of the award of the contract or (ii) six months from the day following the date of execution of the contract if neither the contract award notice has been published nor the award of the contract has been notified (article R. 551-7 of the French code of administrative justice (code de justice administrative – the “CJA”, concerning contracts of a public nature);
  • appeal challenging the validity of the contract where serious breaches committed by the contracting authority may lead to the cancellation of the contract (review procedure which has been opened by French administrative case law concerning contracts of a public nature only: see CE, Ass., 4 April 2014, Département de Tarn-et-Garonne, n° 358994): this review allows interested parties to contest the validity of the contract within two months from the day the contracting authority complied with the appropriate publication measures;
  • appeal against the refusal – made by the contracting authority – to terminate an illegal administrative contract (concerning contracts of a public nature only: see CE, Sect., 30 June 2017, Syndicat mixte de promotion de l’activité transmanche (SMPAT), n° 398445): this review allows interested parties to file an appeal for the termination of the contract within – in principle – two months from the day the contracting authority refused to terminate the contract
• The failure to observe these time limits leads to preclusion.

Regarding procedures for public contracts whose value is estimated to be not less than the European thresholds, the standstill period lasts at least 11 days from the day when the announcement of the contract award decision is sent to the unsuccessful tenderers where electronic means are used to inform all the tenderers concerned.

• When the notification has not been made by electronic means, the standstill is 16 days (art. R2182-1 of the CCP).
• No standstill period is required for (i) public contracts that are awarded to the only economic operator that has participated in the tender procedure, or (ii) the award of contracts based on a framework agreement or specific contracts based on a dynamic purchasing system (art. R2182-2 of the CCP).

• Concerning interlocutory procedures (référé précontractuel, référé contractuel), the review body is the President (or a judge they have appointed within their court) of the locally competent administrative court of first instance (concerning contracts of an administrative nature), or the locally competent judicial court of first instance (regarding contracts of a private nature). Thereafter, an appeal may be filed with the Conseil d’Etat (the highest French administrative court) concerning contracts of a public nature, or before the Cour de cassation (the highest French judicial court) regarding contracts of a private nature.
• The appeal challenging the validity of the contract (referred to as “Tarn-et-Garonne review”) or the refusal to terminate the contract (referred to as “SMPAT review”) must be introduced before the administrative court of first instance. A review may be filed before the administrative court of appeal. Eventually, the Conseil d’Etat will have jurisdiction to review decisions rendered by the administrative courts of appeal.

• There are currently no fees per se for a judicial appeal before the administrative or judicial courts.

• If an appeal is filed before the conclusion of the contract (référé précontractuel), it necessarily has an automatic suspensive effect (as the contracting authority may not sign the contract) starting from when the appeal is notified to the contracting authority until the decision has been made by the judge.
• Other reviews do not have any suspensive effect by themselves but it is still possible to apply for interim measures to this end; the judge may even spontaneously decide to suspend the performance of the contract when the contract is of a public nature (e.g., within the framework of an interlocutory procedure filed after the contract is signed (référé contractuel), the judge may order that the performance of the contract be suspended until a decision has been reached, unless they consider that, given all the interests likely to be affected and in particular the public interest, the negative consequences of this measure could prevail over its advantages).

• A public contract is considered ineffective:
  • when no publication measure required for the conclusion of the contract has been observed;
  • if the contract has been awarded without publication in the OJEU although it was required;
  • when the applicable competition conditions have not been observed in the awarding procedure of a contract based on a framework agreement or based on a dynamic purchasing system;
  • if the contract has been signed before the expiry of the standstill period or during the period of suspension running from the notification of an interlocutory procedure filed before the conclusion of the contract (référé précontractuel) when, in addition, two conditions are fulfilled: (i) the infringement has deprived the tenderer of the possibility of applying for a review of the tendering procedure before the conclusion of the contract and (ii) the alleged violation of publication and competition obligations has affected the chances of the tenderer applying for review to obtain the contract.

(art. L. 551-18 of the CJA concerning contracts of a public nature).

• If rendering the contract ineffective might damage public interest, the judge can impose alternative penalties. They must be effective, proportionate and dissuasive. Such alternative penalties may consist of (i) the early termination of the contract and/or (ii) the shortening of the duration of the contract and/or (iii) fines imposed on the contracting authority (which will not exceed 20% of the value of the contract (art. L. 551-19, L. 551-20, L. 551-22 of the CJA regarding contracts of a public nature)).

• Cases where existing public contracts may be amended during their term without a new tender procedure being required are set out in articles R2194-1 and following of the CCP.
• In substance, public contracts may be amended, in particular when:
  • the modifications, regardless of their value, have been provided for in the initial procurement documents in clear, precise and unequivocal review clauses or options, provided that they do not provide for modifications that would alter the overall nature of the contract (art. R2194-1 of the CCP);
  • additional works, services or supplies by the original contractor have become necessary and were not included in the initial procurement where (i) a change of contractor cannot be made for economic or technical reasons (e.g., requirements of interchangeability and interoperability with existing equipment, services or installations procured under the initial procurement), (ii) any increase in price does not exceed 50% of the value of the original contract, it being specified that consecutive modifications must not be aimed at circumventing the rules of the CCP (art. R2194-2 and R2194-3 of the CCP);
  • the need for modification has arisen from circumstances that a diligent contracting authority could not foresee and (i) the modification does not alter the overall nature of the contract, (ii) the increase in price of any modification (provided that consecutive modifications are not aimed at circumventing the rules of the CCP) does not exceed 50% of the value of the original contract (art. R2194-5 of the CCP);
  • a new contractor replaces the one to which the contracting authority had initially awarded the contract as a consequence of either (i) an unequivocal review clause or option complying with the above-mentioned criteria, or (ii) universal or partial succession into the position of the initial contractor following corporate restructuring, provided that (a) this does not entail other substantial modifications to the contract, (b) this is not aimed at circumventing the rules of the CCP, and (c) the new contractor fulfils the criteria for qualitative selection initially set out by the contracting authority (art. R2194-6 of the CCP);
  • the modifications are not substantial, regardless of their amount, it being specified that indications to assess whether a modification is substantial are provided by article R2194-7 of the CCP;
  • the amount of the modifications is below (i) the EU thresholds and (ii) 10% of the initial contract value for public supply and service contracts or 15% for public works contracts (art. R2194-8 of the CCP).

A reading grid of these provisions should be provided by European and French case law in the future.

• The use of e-procurement has been mandatory since 1 October 2018 for all contracting authorities or entities involved in public contracts whose value exceeds EUR 40,000.
  • In particular, all contracting authorities and entities must offer unrestricted and full direct access – by electronic means and free of charge – to the essential data of any procurement procedure for public contracts whose value exceeds EUR 40,000, unless the disclosure of such information would disturb public order, breach trade secrets or be detrimental to fair competition between economic operators (art. L2196-2 and R2196-1 of the CCP);
  • However, it is up to the relevant contracting authority or entity to decide whether it wishes to impose the use of e-procurement throughout the duration of the contract for all communication – such as amendments to the contract, service orders or purchase orders. In this case, it must be specifically provided for in the procurement contract.
• Exemptions from the obligation to use e-procurement are in specific cases and circumstances referred to in article R2132-12, notably:
  • for procurement contracts for social and other specific contracts;
  • where, due to the specialised nature of the procurement, the use of electronic means of communication would require specific tools, devices or file formats that are not generally available or supported by generally available applications;
  • where the applications suitable for the description of the tenders use file formats that cannot be handled by any other open or generally available applications or are under a proprietary licensing scheme and cannot be made available for downloading or remote use by the contracting authority;
  • where the use of electronic means of communication would require specialised office equipment that is not generally available to procurers;
  • where the use of communication means other than electronic is necessary either due to a security breach of the electronic means or to protect information so sensitive that it requires a level of security that cannot be guaranteed by electronic tools and devices that are either generally available to economic operators or can be made available to them by alternative means of access within the meaning of article R2132-14 of the CCP.
• Under the current rules the use of e-signature is optional for tenderers.
  • It is up to the relevant contracting authority to decide whether it wishes to compel economic operators – in the contract notice or the tender rules within the framework of the relevant tender procedure – to sign bids electronically (art. R2182-3 of the CCP);
  • if the contracting authority decides an e-signature is necessary, an advanced e-signature pursuant to Regulation (EU) No 910/2014 is required. However, e-signatures previously certified in compliance with the French General Regulation of Security (Règlement Général de Sécurité – the “RGS”) may still be used after 1 October 2018, provided they have not yet expired.