Key Benefits:
The Prime Minister,
On the report of the Minister of Economy, Finance and Industry,
Considering the Treaty establishing the European Community;
Considering Directive 2004/17/EC of the European Parliament and of the Council of 31 March 2004 on the coordination of procurement procedures in the sectors of water, energy, transport and postal services, as amended by Directive 2005/51/EC of the Commission of 7 September 2005 amending Annex XX of Directive 2004/17/EC and Annex VIII of Directive 2004/18/EC of the European Parliament and the Council on Public Procurement;
Considering Directive 2004/18/EC of the European Parliament and of the Council of 31 March 2004 on the coordination of procedures for the procurement of public works, supplies and services, as amended by Commission Directive 2005/51/EC of 7 September 2005 amending Annex XX of Directive 2004/17/EC and Annex VIII of Directive 2004/18/EC of the European Parliament and the Council on Public Procurement;
In view of Commission Regulation (EC) No 1564/2005 of 7 September 2005 establishing the standard forms for the publication of notices as part of procurement procedures in accordance with Directives 2004/17/EC and 2004/18/EC of the European Parliament and the Council;
Having regard to Commission Regulation (EC) No. 2083/2005 of 19 December 2005 amending Directives 2004/17/EC and 2004/18/EC of the European Parliament and the Council with regard to their thresholds for application in procurement procedures;
Considering the code of social action and families;
Seen the civil code;
Considering the trade code;
Considering the code of construction and housing;
Considering the code of defence;
Considering the general code of territorial authorities;
Considering the monetary and financial code;
Considering the post and electronic communications code;
Considering the criminal code;
Considering the Code of Criminal Procedure;
Considering the Public Health Code;
Considering the labour code;
Considering the new Code of Civil Procedure;
Having regard to the Act of 17 April 1906 establishing the General Estimates and Revenues for the year 1906, including section 69;
Considering the amended Act No. 51-711 of 7 June 1951 on the obligation, coordination and secrecy of statistics;
Having regard to Act No. 57-908 of 7 August 1957 to promote the construction of housing and collective equipment, as amended by Act No. 82-660 of 30 July 1982, in particular article 21 thereof;
Considering the Financial Law for 1963 (No. 63-156 of 23 February 1963), in particular its article 54;
Having regard to Act No. 75-1334 of 31 December 1975 amended on subcontracting;
Having regard to Act No. 85-595 of 11 June 1985 as amended relating to the status of the archipelago of Saint-Pierre-et-Miquelon;
Considering Act No. 85-703 of 12 July 1985 on certain social economic activities;
Having regard to Act No. 85-704 of 12 July 1985 amended on the mastery of public works and its relationship with the mastery of private works;
In light of Act No. 91-3 of 3 January 1991 amended on transparency and regularity of procurement procedures and subjecting the transfer of certain contracts to advertising and competition rules;
Having regard to Act No. 2001-420 of 15 May 2001 on new economic regulations, including articles 54 and 55;
Considering Act No. 2001-1168 of 11 December 2001 on urgent economic and financial reform measures;
Having regard to Act No. 2005-102 of 11 February 2005, as amended by Act No. 2005-1719 of 30 December 2005 and by Act No. 2005-881 of 2 August 2005, on the equal rights and opportunities, participation and citizenship of persons with disabilities;
Having regard to Order No. 2004-559 of 17 June 2004, as amended by Act No. 2004-1343 of 9 December 2004 and by Act No. 2005-845 of 26 July 2005, on partnership contracts, including Article 8;
In light of Order No. 2005-649 of 6 June 2005, as amended by Act No. 2006-450 of 18 April 2006, relating to contracts passed by certain public or private persons not subject to the Public Procurement Code, including Article 38;
In light of Order No. 2005-722 of 29 June 2005 on the creation of the OSEO public institution and the transformation of the public institution National Agency for the valorization of research into anonymous society;
Having regard to the decree of 12 November 1938 adopted pursuant to the law of 5 October 1938 and extending the regulations in force for the state markets to the markets of local authorities and public institutions;
Considering the amended Decree No. 84-74 of 26 January 1984 establishing the status of standardization;
In view of Decree No. 85-801 of 30 July 1985 concerning the status and operation of the Union des groupements d'achats publics, as amended by Decree No. 2001-887 of 28 September 2001, by Decree No. 2004-15 of 7 January 2004 and by Decree No. 2005-436 of 9 May 2005;
In view of Decree No. 93-1268 of 29 November 1993 concerning the tasks of mastery of works entrusted by public works to private law providers;
In view of Decree No. 98-608 of 17 July 1998 on the protection of the secrets of national defence;
In view of the amended Decree No. 2004-15 of 7 January 2004 on the Code of Public Procurement;
In view of Decree No. 2004-16 of 7 January 2004 pursuant to Article 4 of the Public Procurement Code and concerning certain contracts passed for defence purposes;
Considering the advice of the General Council of Saint-Pierre-et-Miquelon dated 10 February 2006;
The State Council heard,
Decrete:
The provisions annexed to this Decree constitute the public procurement code.
The thresholds mentioned in the Appendix to this Order may be amended by order.
The building and housing code is thus modified:
1° Section R. 423-7 is replaced by the following provisions:
"Art. R. 423-7. - Contracts passed by the Office are subject to the rules established for territorial authorities and their public institutions by the public procurement code. »
2° Section R. 433-4 is replaced by the following provisions:
"Art. R. 433-4. - The markets of the public boards of low-rent housing are subject to the rules set for the local authorities and their public institutions by the public procurement code. »
Article 25 of the above-mentioned Decree of 30 July 1985 is replaced by the following provisions:
“Art. 25. - The relationship between the public institution and a community or organization referred to in section 1 may be defined by an agreement including the nature of the benefits to be realized, the conditions under which the community or agency controls their execution and the terms and conditions for payment of advances on order to the institution. »
Decree No. 2004-16 of 7 January 2004 referred to above is amended as follows:
1° The third paragraph of Article 2 I is deleted and replaced by the following:
"The provisions of the Public Procurement Code relating to pre-information and publications in the Official Journal of the European Union are not applicable to them."
2° In the fourth paragraph of Article 2, the words: "By derogation from Article 65 of the Public Procurement Code" are deleted.
3° The d of III of Article 2 is replaced by the following provisions:
"(d) Procurement of supplies or services awarded to the author of the chosen solution as a result of several definition markets as defined in the first two paragraphs of Article 73 of the Public Procurement Code, having the same object, concluded after a single procedure and executed simultaneously. »
4° In Article 9, the words: "Article 18" are replaced by the words: "Article 19".
The procurement of supplies passed by agencies that are not procuring authorities, but who are assigned an exclusive or special public service mission by a procuring authority subject to the provisions of the Public Procurement Code annexed to this Decree shall respect the principle of non-discrimination on the basis of nationality.
Are repealed:
1° Article 13 and 2 and 4 of Article 18 of the decree of 26 January 1984 referred to above;
2° Decree No. 2004-15 of 7 January 2004 referred to above, with the exception of the provisions of Article 5, as well as the provisions annexed to this decree;
3° Decree No. 2001-738 of 23 August 2001 pursuant to Article 17 of the Public Procurement Code and on the rules that public procurement can take into account changes in economic conditions;
4° Decree No. 2001-846 of 18 September 2001 adopted pursuant to the 3rd of Article 56 of the Public Procurement and Electronic Auction Code;
5° Decree No. 2002-692 of 30 April 2002 pursuant to 1° and 2° of Article 56 of the Public Procurement Code and concerning the dematerialization of public procurement procedures.
I. - The provisions of this Decree come into force on 1 September 2006.
II. - Public procurement notified prior to the date of entry into force of this Decree shall be governed by the provisions of the Public Procurement Code in their drafting prior to the provisions annexed to this Decree.
III. - The public procurement for which a consultation has been initiated or a notice of public appeal to competition sent to the publication prior to the date of entry into force of this decree shall, for their transfer, be governed by the provisions of the Public Procurement Code in their drafting prior to the provisions annexed to this decree. Their execution obeys the provisions annexed to this decree.
the Minister of State, Minister of Interior and Land Management, Minister of Defence, Minister of Foreign Affairs, Minister of Employment, Social Cohesion and Housing, Minister of Economy, Finance and Industry, Minister of National Education, Higher Education and Research, Minister of Justice, Minister of Transport,
A N N E X E
PART I
APPLICABLE PROVISIONS
ADJUDITORS
PART I
PAPLICATION CHAMP
AND FUNDAMENTAL PRINCIPLES
Chapter I
Basic definitions and principles
1
I. - The provisions of this Code apply to public procurement and framework agreements as defined:
Public contracts are expensive contracts between the procuring authorities defined in Article 2 and public or private economic operators to meet their work, supplies or services needs.
The framework agreements are the contracts between one of the procuring authorities defined in Article 2 and public or private economic operators, with the aim of establishing the terms governing the contracts to be made during a given period, including with respect to prices and, where applicable, the quantities envisaged.
II. - Public contracts and framework agreements submitted to this Code respect the principles of freedom of access to public order, equal treatment of candidates and transparency of procedures. These principles ensure the effectiveness of public order and the proper use of public money. These obligations are implemented in accordance with the rules established by this Code.
III. - Public works contracts are contracts concluded with contractors, which are intended either to be carried out, or to jointly design and execute a building or civil engineering work that meets the needs specified by the procuring authority that exercises its control of work. A work is the result of a set of building or civil engineering works intended to perform an economic or technical function by itself.
Public procurement of supplies are contracts with suppliers that are intended to purchase, lease, lease or sell goods or equipment.
Public service markets are contracts with service providers that are designed to deliver services.
When a public market has both services and supplies, it is a service market if the value of services exceeds that of supplies purchased.
When a public procurement involves both services and work, it is a labour market if its main purpose is to carry out work.
A public market for the acquisition of supplies and, as an accessory, installation and installation of supplies is considered a supply market.
2
The procuring powers subject to this Code are:
1° The State and its public institutions other than those of an industrial and commercial character;
2° Local authorities and local public institutions.
Unless otherwise provided, the rules applicable to the State are also applicable to those of its public institutions to which the provisions of this Code apply. Similarly, unless otherwise provided, the rules applicable to local authorities are also applicable to local public institutions.
Chapter II
Exclusions
3
The provisions of this Code shall not apply to the following contracts and framework agreements passed by the procuring authorities defined in Article 2:
1° Framework agreements and contracts between a procuring power and a contracting party on which it exercises control comparable to that exercised on its own services and which carries out the bulk of its activities for it provided that, even if this contracting party is not a procuring power, it applies, in order to meet its own needs, the procurement rules provided for in this code or by the order of the public contracts not
2° Framework agreements and service contracts concluded with a procuring authority subject to this Code or to the above-mentioned order of 6 June 2005, where the procuring authority enjoys an exclusive right on the basis of a legal provision, provided that this provision is compatible with the Treaty establishing the European Community;
3° Framework agreements and service contracts that are intended to acquire or lease, regardless of the financial terms, land, existing buildings or other real property, or that relate to other rights to such property; However, the financial services contracts concluded in relation to the acquisition or lease contract, in any form, fall within the scope of this code;
4° Framework agreements and markets for the purchase, development, production or co-production of programs for broadcasting by broadcasting organizations and markets for broadcast times;
5° Framework agreements and financial services contracts relating to the issuance, purchase, sale and transfer of securities or other financial instruments and to procurement of money or capital of the procuring powers, subject to the provisions of the 3°.
Services provided to procuring authorities by central banks are also excluded;
6° Framework agreements and contracts for research and development services other than those for which the procuring authority acquires exclusive ownership of the results and fully funds the delivery;
7° Framework agreements and contracts, other than those that have passed pursuant to the decree provided for in Article 4, II, of this Code, which require secrecy or whose execution must be accompanied by special security measures in accordance with the legislative or regulatory provisions in force or for which the protection of the essential interests of the State requires it. A Prime Minister's order sets out the conditions under which, on the occasion of the passing and enforcement of the framework agreements and contracts mentioned in this paragraph, respect for the protection of secrecy and information or interests concerning national defence, public security or the security of the State;
8° Framework agreements and contracts passed under the procedure specific to an international organization;
9° Framework agreements and contracts passed according to specific procurement rules provided for by an international agreement on the parking of troops;
10° Framework agreements and contracts passed according to specific procurement rules provided for by an international agreement for the realization or joint operation of a project or work;
11° Framework agreements and markets which aim to purchase existing works and art objects, antiques and collection objects;
12° Framework agreements and service contracts relating to arbitration and conciliation;
13° Framework agreements and service contracts for labour contracts;
14° Framework agreements and contracts which are primarily intended to permit the provision or operation of public electronic communications networks or the provision to the public of one or more electronic communications services;
15° Framework agreements and contracts that cease to be subject to the provisions of this Code pursuant to Article 140.
Chapter III
Specific provisions
certain defence markets
4
I. - In cases where the provisions of Articles L. 1111-1, L. 1111-2, L. 2141-1, L. 2141-2 and L. 2141-3 of the Defence Code apply, a particular Order replaces, if necessary, for the framework agreements and contracts passed by the Defence Services, the provisions of this Code.
II. - A decree in the Council of State determines the special conditions in which certain framework agreements and contracts have passed for the defence needs.
PART II
GENERAL PROVISIONS
Chapter I
Determination of needs
5
I. - The nature and extent of the needs to be met are determined with precision prior to any call to competition or any negotiation that is not preceded by a call to competition, taking into account sustainable development objectives. The sole purpose of the contract or framework agreements concluded by the procuring authority is to meet these requirements.
II. - The procuring authority determines the level to which needs are assessed. Such an election shall not have the effect of removing markets from the rules that are normally applicable to them under this Code.
Chapter II
Technical specifications
6
I. - Benefits that are the subject of a contract or framework agreement are defined in the consultation documents by technical specifications formulated:
1° refers to standards or other equivalent documents accessible to candidates, including technical approvals or other technical references developed by standardization bodies;
2° Either in terms of performance or functional requirements. These are sufficiently precise to allow candidates to know exactly the subject matter of the market and the procuring authority to award the contract. They may include environmental characteristics.
An order of the Minister responsible for the economy specifies the nature and content of the technical specifications.
For markets passed according to a suitable procedure, the technical specifications can be described in a succinct manner.
II. - The procuring authority determines the benefits that are the subject of the market or the framework agreement that it passes:
1° Either using exclusively any of the categories of technical specifications mentioned in 1° and 2° of I;
2° Either by combining them.
This combination is operated:
(a) Either by defining performance or functional requirements and specifying the reference to the standards or other equivalent documents referred to in 1° of I that are presumed to be able to perform these performance or meet these requirements;
(b) Either using equivalent standards or other documents for certain aspects of the market and performance or functional requirements for others.
III. - The technical specifications mentioned in I allow equal access to candidates and cannot create unwarranted obstacles to open public markets to competition. Whenever possible, they are established to take into account accessibility criteria for persons with disabilities or, for all users, functionality criteria.
IV. - Technical specifications may not refer to a particular mode or process of manufacture or to a particular origin or origin, or refer to a mark, patent or type, provided that such a reference or reference would have the effect of promoting or eliminating certain economic operators or certain products. However, such a reference or reference is possible if justified by the subject-matter of the market or, exceptionally, in the event that a sufficiently precise and intelligible description of the subject-matter of the market is not possible without it and provided that it is accompanied by the terms "or equivalent".
V. - When the procuring authority uses a technical specification formulated in accordance with the terms set out in 1° of I, it cannot reject an offer on the ground that it is not in accordance with this specification if the candidate proves in its offer, by any appropriate means, that the solutions it proposes meet this specification in an equivalent manner.
VI. - When the procuring authority defines performance or functional requirements according to the terms set out in 2° of I, it cannot reject an offer if it conforms to equivalent standards or documents that themselves correspond to the required performance or functional requirements.
The applicant is required to demonstrate, by any appropriate means, that the equivalent standards or documents contained in the offer meet the required performance or functional requirements. May constitute an appropriate means of proof within the meaning of this Article a manufacturer's technical record or a test report of a recognized body. Organizations recognized as defined in this section are: testing or sizing laboratories and inspection and certification bodies in accordance with applicable European standards. The procuring powers accept certificates from bodies recognized in other Member States.
VII. - When the performance or functional requirements defined under 2° of I have environmental characteristics, they may be defined by reference to any or part of an ecolabel, however:
1° That this ecolabel be appropriate to define the characteristics of supplies or services being marketed;
2° That the mentions in the ecolabel have been established on the basis of scientific information;
3° That the ecolabel was the subject of an adoption procedure in which representatives of government agencies, consumers, manufacturers, distributors and environmental organizations participated;
4° That the ecolabel be accessible to all interested parties.
The procuring authority may indicate, in the consultation documents, that products or services that have obtained an ecolabel are presumed to meet the environmental characteristics referred to in the technical specifications but is required to accept any appropriate means of evidence.
VIII. - If the documents provided by a candidate under this article are not written in the French language, the procuring authority may require that these documents be accompanied by a certified French translation in accordance with the original by a sworn translator.
Chapter III
Coordination, command grouping
and purchasing center
7
Within a procuring authority, services that have a clean budget can coordinate the procurement of their contracts or framework agreements, regardless of their amount, in terms that they determine freely. Contracts or framework agreements thus passed are governed by the rules set out in this Code.
8
I. - Order groupings may be established:
1° Between State services and State public institutions other than those of an industrial and commercial nature or between such public institutions alone;
2° Between local authorities, between local public institutions or between local authorities and local public institutions;
3° Between public persons mentioned in 1° and 2° above;
4° Between one or more public persons mentioned in 1° and 2° above and one or more legal persons of private law, or one or more national public institutions of an industrial and commercial nature, public interest groups, social or medico-social cooperation groups or health cooperation groups, provided that each member of the group applies, for purchases made within the framework of the group, the rules set out in this Code.
II. - A constituent agreement is signed by the members of the group.
It defines how the group operates.
It designates a co-ordinator among the members of the group, having the quality of procuring power under this code or the order of June 6, 2005.
The latter is responsible, in accordance with the rules set out in this Code, for the organization of all the selection operations of one or more contractors.
Each member of the group undertakes, in the agreement, to sign a contract with the contracting partner to meet his own needs, as he has previously determined them.
III. - Are members of the Group's tendering committee:
1° With regard to the persons mentioned in 1° I, a representative of each member of the group;
2° With respect to the persons mentioned in 2° of I, with the exception of public health institutions and public social or medico-social institutions, a representative of the tender board of each member of the group, elected from among its members with a deliberate vote;
3° With regard to persons mentioned in 3° and 4° of I and public health institutions and social or social public institutions, a representative of each member of the group designated according to the rules of its own.
The tendering committee is chaired by the coordinator's representative. For each incumbent member may be provided with an alternate.
IV. - The chair of the commission may designate competent personalities in the matter that is the subject of the consultation. These are convened and may participate, with an advisory voice, in the meetings of the tender board.
The tendering board may also be assisted by agents of the members of the group, competent in the matter that is the subject of consultation or in public procurement.
For the contracts and framework agreements of the groupings referred to in 2°, 3° and 4° of I, the accountant of the grouping coordinator, if he is a public accountant and a representative of the Director General of Competition, Consumption and Suppression of Frauds, may participate, with an advisory voice, in the meetings of the tendering board, when invited. Their observations are recorded in the minutes.
V. - For the contracts and framework agreements of the groupings mentioned in 1° of the I, the co-ordinator chooses the co-contractor after notice of the tender board, in the conditions set by this code for the state markets.
For the contracts and framework agreements of the groups mentioned in 2° of I, the tender board shall choose the contractor under the conditions set by this code for the markets of the territorial authorities. However, for the markets and framework agreements of the groupings of public health institutions and social and mediocial public institutions, the coordinator chooses the co-contractor after advice from the tender board.
For the contracts and framework agreements of the groupings referred to in 3° and 4° of the I and whose majority of the members are territorial authorities, the tendering board shall choose the contractor under the conditions set out in this Code for the markets of the territorial authorities. Otherwise, it is the co-ordinator who chooses the co-contractor after the advice of the tender board, under the conditions set by this code for the state markets.
VI. - Each member of the group, as far as it is concerned, signs the market and ensures its proper execution.
VII. - The constitutive convention of the group may also have provided that the coordinator will be responsible:
1° either sign and notify the market or the framework agreement, each member of the group, with respect to it, ensuring its proper execution;
2° Either sign the contract or framework agreement, notify it and execute it on behalf of all members of the group.
In both cases, the constitutive agreement of the group may provide that the tender board is that of the coordinator.
If the co-ordinator does not have a call for tenders, it is one for the operational needs of the grouping.
9
A procurement power plant is a procuring power subject to this code or to the above-mentioned order of June 6, 2005, which:
1° Acquit of supplies or services for procuring powers;
or
2° Passing public procurement or entering into framework agreements for work, supplies or services for procuring authorities.
Chapter IV
Lamping
10
In order to create greater competition, and unless the subject-matter of the market does not allow the identification of separate benefits, the procuring authority shall place the contract in separate lots under the conditions set out in Article 27 III. To this end, it freely selects the number of lots, taking into account, inter alia, the technical characteristics of the requested benefits, the structure of the economic sector in question and, where appropriate, the rules applicable to certain occupations. Nominations and offers are reviewed lot by lot. Candidates cannot present variable offers according to the number of lots that may be obtained. If several lots are assigned to the same licensee, however, it is possible to sign with the licensee only one market with all of these lots.
The procuring authority may, however, pass a global market, with or without identification of separate benefits, if it considers that the devolution in separate lots is of a nature, in the particular case, to restrict competition, or that it may make technically difficult or financially costly the performance of the benefits or that it is not in a position to carry out organizational, steering and coordination tasks by itself.
If the procuring authority uses separate batches for an operation that is both intended for the construction and operation or maintenance of a work, the construction and operation or maintenance services cannot be grouped in the same lot. If it uses a global market, it requires that the respective costs of construction and operation or maintenance appear separately. Compensation for operating or maintenance benefits cannot in any case contribute to the payment of construction.
Chapter V
Constituent documents of the market
11
Contracts and framework agreements in the amount equal to or greater than EUR 4,000 HT are written.
For contracts passed according to formalized procedures, the act of engagement and, if applicable, the specifications are the constituent parts.
The act of engagement is the document signed by a candidate for a framework agreement or a public market in which the candidate presents his offer or proposal in accordance with the terms of the terms of reference that determine the conditions under which the contract is executed. This act of engagement is then signed by the procuring power.
12
I. - The constitutive parts of the contracts passed on a formalized basis must include the following:
1° Identification of Contracting Parties;
2° The justification for the quality of the signatory person on behalf of the State and, where appropriate, the deliberation authorizing the signing of the contract;
3° The definition of the object of the market;
4° The reference to the articles and subparagraphs of this code under which the market has passed;
5° Listing of market parts; these documents are presented in a priority order defined by the contracting parties. Unless there is a manifest error, this priority order prevails in case of contradiction in the contents of the parts;
6° The price or terms of its determination;
7° The duration of the contract or the forecast dates of the start of execution and completion;
8° Conditions of receipt, delivery or admission of benefits;
9° Settlement conditions, in particular, if they are provided in the market, the payment deadlines;
10° Conditions of termination, including those provided for in Article 47;
11° The date of notification of the market;
12° The designation of the assignee;
13° Elements specific to parole contracts.
II. - For the design-realization markets defined in Article 37, are also constitutive parts of the market:
1° The programme of the operation, within the meaning of section 2 of Act No. 85-704 of 12 July 1985 amended on the mastery of public works and its relationship with the mastery of private works;
2° Design studies presented by the selected economic operator.
III. - The constitutive parts of the framework agreements must include the mentions listed in 1°, 2°, 3°, 4°, 5°, 6°, 7°, 10° and 11° of the I of this article.
The constitutive parts of the contracts passed on the basis of a framework agreement must include the mentions listed in 6°, 8°, 9°, 12° and 13° of I of this article, if these references have not already been indicated in the framework agreement.
IV. - If constitutive documents are not written in the French language, the procuring authority may require that these documents be accompanied by a French translation certified in accordance with the original by a sworn translator.
13
The terms and conditions under which the contracts are executed are determined by formalized procedures.
They include general documents and specific documents.
Background documents are:
1° The terms of the general administrative clauses, which set the administrative provisions applicable to a contract category;
2° The terms of the general technical clauses, which set out the technical provisions applicable to all benefits of the same nature.
These documents are approved by an order of the Minister responsible for the economy and interested ministers.
The reference to these documents is not mandatory.
The special documents are:
1° Specific administrative clauses, which define the administrative provisions of each market;
2° Specific technical clauses, which set out the technical provisions necessary for the performance of the services of each market.
If the procuring authority decides to refer to general documents, the specific documents shall include, where appropriate, the indication of the general documents to which they derogate.
Chapter VI
Social and environmental clauses
14
The conditions for the execution of a market or framework agreement may include elements of a social or environmental nature that take into account the sustainable development objectives by combining economic development, environmental protection and development and social progress.
These performance conditions may not have a discriminatory effect on potential candidates. They are listed in the notice of public appeal to competition or in the consultation documents.
Chapter VII
Reserved markets
15
Some markets or lots of a market may be reserved for suitable companies or work-assisted institutions and services referred to in articles L. 323-31 of the Labour Code and L. 344-2 of the Social Action and Families Code, or equivalent structures, where the majority of the workers concerned are persons with disabilities who, because of the nature or severity of their deficiencies, cannot engage in professional activity under normal conditions.
The notice of public appeal to competition refers to this provision.
Chapter VIII
Contract duration
16
Subject to the provisions setting the maximum duration for the framework agreements and purchase orders contracts, the complementary contracts entered into negotiated proceedings and the contracts relating to communications operations, the duration of a contract and, where appropriate, the number of its extensions are fixed taking into account the nature of the benefits and the need for periodic competition.
A market may provide for one or more extensions provided that its characteristics remain unchanged and that competition has been achieved taking into account the total duration of the market, including reappointment periods.
The procuring authority shall in writing decide whether or not to renew the contract. The market holder may not refuse to renew the contract unless otherwise specified in the market.
Chapter IX
Market price
17
The prices of the services being marketed are either unit prices applied to the quantities actually delivered or executed, or flat prices applied to all or part of the market, regardless of the quantities delivered or executed.
Incentives can be inserted into markets to improve delivery times, to seek better quality of services and to reduce production costs.
18
I. - Subject to the provisions of Article 19, a contract shall be entered into at a final price.
II. - A final price can be firm or revisable.
III. - A firm price is an invariable price for the duration of the market. However, it is updated under the conditions defined below.
A market is concluded at a firm price in the event that this form of price is not likely to expose to major hazards the parties to the market due to the reasonably predictable evolution of the economic conditions during the performance period of the benefits.
When a market is concluded at firm prices for supplies or services other than current or for work, it provides the terms and conditions for updating its price. It states, inter alia:
1° That this award will be updated if a period of more than three months is between the date on which the applicant has set its price in the offer and the date on which the benefits begin;
2° That the update will be made on the economic conditions corresponding to a previous date of three months on the date of commencement of the benefits.
When a market is entered into at firm prices for common supplies or services, it may provide that its price may be updated in accordance with the rules mentioned above.
The price thus updated remains firm throughout the delivery period of the benefits and constitutes the payment price.
For the purposes of these provisions, are deemed to be common supplies or services for which the procuring authority does not impose market-specific technical specifications.
IV. - A revisable price is a price that can be modified to take into account economic variations under the conditions set below.
When the price is revisable, the market sets the date for the establishment of the original price, the method for calculating the revision and the periodicity of its implementation. The method for calculating the price revision shall be determined:
1° Depending on a reference from which the price of the benefit is adjusted;
2° Either by application of a formula representative of the evolution of the cost of delivery. In this case, the revision formula takes into account only the different elements of the cost of the benefit and may include a fixed term;
3° Either by combining the terms mentioned in 1° and 2°.
V. - Contracts of work for a period of more than three months that require, for their realization, the use of a large proportion of supplies whose price is directly affected by fluctuations in global prices, include a price revision clause including a reference to the official benchmarks for fixing these courses, in accordance with 1° of IV of this Article.
19
I. - It is possible to enter into interim contracts in the following exceptional cases:
1° When, for complex services or using a new technique that is either a compelling emergency or a significant technical hazard, the execution of the market must begin while the determination of a final initial price is not yet possible;
2° When the results of a cost-of-return survey of comparable benefits ordered to the holder of an earlier market are not yet known;
3° When the prices of the last tranches of a sliced market, as defined in section 72, are determined in the light of the results, not yet known, of a cost-of-return survey of the first tranches, concluded at final prices;
4° Where the final prices of comparable benefits that have been the subject of prior contracts are questioned by the prospective candidate or the procuring authority, provided that the latter does not have the technical or accounting elements to enable it to negotiate new final prices.
II. - Contracts with interim prices specify:
1° The conditions under which the final price will be determined, possibly within the limit of a ceiling price;
2° The maturity to which an avenor must intervene to fix the final price;
3° The accounting rules to which the licensee shall comply;
4° On-site and on-site audits that the procuring authority reserves to perform on the technical and accounting elements of the cost of return.
III. - For the realization of the works referred to in Article 1 of the Act of 12 July 1985 referred to above, the master's contracts have passed at provisional prices in accordance with Decree No. 93-1268 of 29 November 1993 on the master's duties entrusted by public works owners to private law providers.
Chapter X
Avenants
20
Unless unforeseen technical considerations do not result from the fact of the parties, an avenger or a decision to pursue cannot alter the economy of the market or of the framework agreement or change its purpose.
PART III
PASSATION OF MARKES
Chapter I
Composition of the tender board
and the Competition Jury
Section 1
The tender board
Sub-section 1
The State's call for tenders
21
For the State and its public institutions are constituted one or more standing tender commissions. A specific commission may also be constituted for the procurement of a specified market. The composition and operating procedures of the tender boards are fixed:
1° With respect to the central government of the State, the national jurisdiction services and the deconcentrated services that are not placed under the authority of the prefect, by the minister of which they depend;
2° With regard to the deconcentrated services of the State under the authority of the prefect, by the prefect;
3° With regard to public institutions of the State, the rules specific to each institution.
A representative of the General Directorate of Competition, Consumption and Suppression of Frauds is a member of the Commission with an advisory vote.
Sub-section 2
The call for tenders of local authorities
22
I. - For local authorities and local public institutions, one or more standing tender commissions are established. A specific commission may also be constituted for the procurement of a specified market. These tender commissions are composed of the following members:
1° When it comes to a region, the president of the regional council or his representative, president, and five members of the council elected within him to the proportional representation of the strongest remains;
When it comes to the territorial community of Corsica, the president of the executive council or his representative, president, and five members of the assembly of Corsica elected within him to the proportional representation of the strongest remains;
2° When it comes to a department, the President of the General Council or his representative, President, and five members of the council elected within him to the proportional representation of the strongest remains;
3° When it comes to a municipality of 3,500 inhabitants and more, the mayor or his representative, president, and five members of the municipal council elected within him to the proportional representation of the strongest remains;
4° When it comes to a municipality of less than 3,500 inhabitants, the mayor or his representative, president, and three members of the municipal council elected within him to the proportional representation of the strongest remains;
5° When it comes to a public institution of inter-communal cooperation or a joint union, the president of that institution or union or its representative, the president, and a number of members equal to that provided for the composition of the commission of the community to the highest number of inhabitants, elected within it, by the deliberate assembly of the institution or the union. However, if this number cannot be reached, the commission shall consist of at least one president and two members elected by the deliberative assembly of the establishment or union;
6° When it comes to another local public institution, the legal representative of the institution or its representative, the president, and two to four members of the legislative body designated by the institution.
When it comes to public health establishments or public social or medico-social establishments, the number, composition and organization and operation of the tender board or tender boards are determined by the director of the establishment after notice of the board of directors.
In addition to the Director or his/her representative, Chair, each commission must include at least one member designated by the Board of Directors within the director or among qualified personalities proposed by the Director. Each commission has an odd number of members.
II. - In all cases listed above, the designation or election of substitutes shall be carried out in the same manner as that of the incumbent members. This rule does not apply to public inter-communal cooperation institutions and to joint unions with a legislative body of less than five members. In the case of a public health institution or a social or medico-social public institution, the replacement of the holder may be made by either a specified alternate or by a substitute selected from all alternate representatives.
III. - For the communities mentioned in 1°, 2°, 3°, 4° and 5° of I, the election of the incumbent members and alternates shall take place on the same list, without bandaching or preferential vote. Lists may include fewer names than there are seats of holders and alternates to be filled.
In case of equal remains, the seat returns to the list that won the largest number of votes. If the lists in question have also won the same number of votes, the seat is allocated to the oldest of the candidates who may be declared elected.
It is provided for the replacement of a member holding the tendering board by the alternate registered on the same list and coming immediately after the last elected holder of that list. The replacement of the alternate, thus becoming a member, shall be ensured by the candidate on the same list, immediately after the candidate.
The full renewal of the tender board shall be effected when a list is unable to provide, under the conditions set out in the preceding paragraph, the replacement of the incumbent members to whom it is entitled.
IV. - Deliberative vote on the members mentioned in I. In the event of the equal sharing of votes, the president has a dominant voice.
V. - The tendering board may appeal to the competition of competent procuring agents in the matter that is the subject of consultation or in public procurement.
23
I. - Can participate, with an advisory voice, in the meetings of the tender board:
1° One or more members of the competent technical service of the procuring authority or another procuring authority to monitor the execution of the work or perform compliance control when the regulation imposes the competition of such services or when the contract deals with works subsidized by the State;
2° Personalities designated by the Chairperson of the Commission because of their competence in the matter that is the subject of the consultation;
3° In the case of public health institutions and social and social public institutions, a representative of the departmental director of health and social affairs. His observations are recorded in the minutes.
II. - When invited by the Chairman of the tendering board, the public accountant and a representative of the Director General of Competition, Consumption and Suppression of Frauds may participate, with an advisory voice, in meetings of the tendering board. Their observations are recorded in the minutes.
Section 2
The competition jury
24
I. - The competition jury is composed exclusively of persons independent of the contest participants.
(a) For the State and its public institutions, the members of the competition jury are designated under the conditions provided for in Article 21.
(b) For territorial authorities, members of the jury are designated under the conditions set out in I, II and III of Article 22.
(c) For the panels mentioned in Article 8, the members of the jury are the members of the tender board provided for in Article 8 III.
(d) The President of the jury may also designate as members of the jury personalities whose participation is of particular interest to the subject matter of the contest, without the number of such personalities exceeding five.
(e) In addition, where a professional qualification is required for candidates to participate in a competition, at least one third of the members of the jury have this qualification or equivalent qualification. They are appointed by the president of the jury.
All members of the jury have a deliberate vote.
II. - The public accountant and a representative of the Director General of Competition, Consumer Affairs and the Suppression of Frauds are invited to participate in the State jury. They may participate, when invited by the president of the jury, to the jury of the local authorities. They have an advisory voice. Their comments are recorded in the minutes at their request.
III. - The president of the jury may, in addition, appeal to the competition of competent procuring agents in the matter that is the subject of consultation or in public procurement. These officers have an advisory voice.
IV. - The jury can audition anyone who can provide him with useful information.
Section 3
Common operating rules
25
Meetings of the commission referred to in articles 8, 21 to 23 or of the jury shall be addressed to their members at least five frank days before the scheduled date of the meeting.
The quorum is reached when more than half of the members with a deliberate vote are present.
If, after a first summons, this quorum is not reached, the tender board or the jury is reconvened. They then meet validly without conditions of quorum.
The tender board or the jury shall prepare minutes of its meetings. All members of the commission or jury may request their comments to be brought to the record.
In the event of an imperious emergency provided for in 1° of II of Article 35, the contract may be awarded without prior meeting of the tender board.
Chapter II
Definition of thresholds and presentation
of procurement procedures
Section 1
Presentation and thresholds of procedures
26
I. - The procuring authorities pass their contracts and framework agreements according to the following formalized procedures:
1° Open or restricted tenders;
2° Negotiated procedures, in the cases provided for in Article 35;
3° Competitive dialogue, in the cases provided for in Article 36;
4° Competition, defined by Article 38;
5° Dynamic acquisition system, defined by Article 78.
II. - Contracts and framework agreements may also be passed according to an appropriate procedure, under the conditions defined in Article 28, where the estimated amount of the need is below the following thresholds:
1° 135 000 EUR HT for State supplies and services;
2° 210 000 EUR HT for supplies and services of local authorities;
3° 210 000 EUR HT for supplies acquired by procuring authorities operating in the field of defence other than those listed by joint order of the Minister for Economics and the Minister for Defence;
4° 210 000 EUR HT for research and development services markets for which the procuring power acquires exclusive ownership of the results and is fully funded;
5° 210 000 EUR HT for work.
III. - The procuring powers may also implement an appropriate procedure:
1° Pursuant to Article 30;
2° For certain lots, under the conditions set out in Article 27 III.
IV. - For contracts and work framework agreements of an estimated amount between EUR 210 000 HT and EUR 5,270,000 HT, the procuring authority may freely choose between all formalized procedures listed in I. Where the estimated amount of contracts and work framework agreements is equal to or greater than EUR 5,270,000 HT, the procuring authority may only use the different formalized procedures, other than the tender, under the conditions set out in sections 35 to 38.
V. - Contracts may also be contracted on the basis of a framework agreement in accordance with the provisions of Article 76.
VI. - For the groupings of orders referred to in Article 8, the thresholds to be taken into account are those that are applicable to the markets and framework agreements of the State whenever a service of the State or a public institution of a non-industrial and commercial nature of the State is a member of the grouping. In other cases, the thresholds to be taken into account are those applicable to the markets and framework agreements of the territorial authorities.
VII. - Contracts without prior formalities referred to in the General Code of Territorial Communities are the markets of less than the thresholds set out in II.
Section 2
Method of calculating the estimated value of public procurement,
dynamic acquisition systems and framework agreements
27
I. - The procuring authority may not be exempt from the application of this code by scintillating its purchases or by using methods for calculating the estimated value of contracts or framework agreements other than those provided for in this Article.
II. - The estimated amount of the need is determined under the following conditions, regardless of the number of economic operators to which it is appealed and regardless of the number of markets to be made.
1° With regard to the work, the overall value of the work related to an operation on one or more works and the value of the supplies necessary for their realization that the procuring authority makes available to the operators.
There is a work operation when the procuring authority makes a decision to implement, within a limited period of time and scope, a set of work characterized by its functional, technical or economic unit.
2° For supplies and services, an estimate of the total value of supplies or services that can be considered homogeneous either because of their own characteristics or because they constitute a functional unit is made.
The delimitation of a homogeneous category of supplies or services shall not result in the removal of markets from the rules that are normally applicable to them under this Code.
For markets of a duration of less than or equal to one year, concluded to meet a regular need, the total value mentioned above is that which corresponds to the needs of one year.
III. - When a purchase can be made by separate batches, the estimated overall value of all of these lots is taken into account.
The procuring authorities may decide to implement either a common competition procedure for all lots or a competition procedure for each lot. Regardless of the option chosen, where the cumulative value of the lots is equal to or greater than the thresholds provided for in Article 26, II, the procedure or procedures to be implemented are the formalized procedures referred to in Article I.
However, even if the total value of the lots is equal to or greater than the formalized market thresholds, it is possible to use an appropriate procedure:
1° For lots less than EUR 80,000 HT in the case of supply and service markets and in the case of work contracts less than EUR 5,270,000 HT;
2° For lots less than EUR 1,000 000 HT in the case of work contracts equal to or greater than EUR 5,270,000 HT,
provided that the cumulative amount of these lots does not exceed 20% of the value of all batches. In the event that a minimum and a maximum are fixed, 20% apply to the minimum market amount.
This exemption may also apply to declared unsuccessful or unsuccessful lots following the completion of a first procedure and to lots whose execution is unfinished after termination of the initial market when these lots meet the conditions set by the three preceding paragraphs.
This exemption may, however, apply to framework agreements and markets that do not have a minimum amount.
IV. - If the procuring authority provides bonuses for the benefit of the candidates, it takes into account their amount to calculate the estimated value of the need.
V. - For framework agreements and for dynamic acquisition systems, the value to be taken into account is the estimated maximum value of all contracts envisaged during the total duration of the framework agreement or dynamic acquisition system.
VI. - For purchase orders with a maximum, the value to be taken into account is the maximum. If the market does not set a maximum, its value is deemed to exceed the thresholds referred to in Article 26 II of this Code.
Section 3
Appropriate procedure
28
Where their estimated value is less than the thresholds referred to in Article 26, the contracts of supplies, services or works may be passed according to an appropriate procedure, the terms of which are freely fixed by the procuring power according to the nature and characteristics of the need to be met, the number or location of the economic operators likely to respond to it and the circumstances of the purchase.
For the determination of these terms, the procuring authority may be guided by the formalized procedures set out in this Code, provided that the contracts in question are not subject to the formal rules applicable to these procedures. However, if it specifically refers to one of the formalized procedures provided for in this Code, the procuring authority is required to apply the terms and conditions set out in this Code.
Regardless of its choice, the procuring authority may not require economic operators more information or documents than those provided for in procedures formalized by sections 45, 46 and 48.
The procuring authority may decide that the contract will be passed without prior advertising or competition if the circumstances warrant it, or if its estimated amount is less than EUR 4,000, or in the situations described in Article 35.
Section 4
Procedure for service markets
29
With regard to their procurement, the rules set out in this heading shall be subject to public contracts and framework agreements for the services listed below:
1. Maintenance and repair services;
2. Ground transportation services, including armoured vehicle services and mail services;
3. Air transportation services for passengers and goods;
4. Mail transport services by land and air transport;
5. Electronic communications services;
6. Financial services: insurance, banking and investment services, subject to the provisions of 3° and 5° of section 3;
7. Computer services and related services;
8. Research and development services, subject to the provisions of Article 6;
9. Accounting, audit and bookkeeping services;
10. Market and survey services;
11. Management consulting and related services;
12. Architecture Services; Engineering Services and Integrated Engineering Services; urban planning and landscape architecture services; related scientific and technical consultations; technical testing and analysis services;
13. Advertising services;
14. Building cleaning services and property management services;
15. Publishing and printing services;
16. Garage and garbage removal services, sanitation services and similar services.
30
I. - Contracts and framework agreements for services that are not referred to in Article 29 may be entered into, regardless of their amount, by appropriate procedure, under the conditions provided for in Article 28.
II. - However:
1° The provisions of Article 40 III and IV shall not apply;
2° Where the estimated amount of the claimed benefits is equal to or greater than EUR 210 000 HT, they are defined in accordance with the provisions of Article 6 and the contract is subject to an award notice under the conditions set out in Article 85;
3° Contracts of an amount equal to or greater than EUR 210 000 HT are awarded by the tendering board for local authorities and after notice of the tendering board for the State, public health institutions and public social or psychosocial institutions;
4° The procuring authority shall ensure respect for the ethical principles and regulations applicable, if any, to the professions concerned;
5° Legal services contracts are not subject to the provisions of Part IV of this Part. In addition, those of these markets that are intended to represent a territorial community for the settlement of a dispute are not forwarded to the representative of the State.
III. - Where a contract or a framework agreement is the object of both service benefits referred to in section 29 and service benefits not mentioned therein, it has passed in accordance with the rules that apply to those two categories of service benefits, the estimated amount of which is the highest.
Section 5
Purchase plants
31
The procuring authority that uses a procurement power plant for the construction of work or for the acquisition of supplies or services shall be deemed to have complied with its advertising and competition obligations, provided that the purchasing power plant is subject, for all purchases, to the provisions of this Code or the order of June 6, 2005 referred to above.
Chapter III
General procurement rules
Section 1
Method of transmission of documents and information
32
The means of transmission of documents and information that are chosen by the procuring authority must be accessible to all economic operators and may not have the effect of restricting the access of candidates to the attribution procedure.
The transmissions, exchanges and storage of information are carried out in such a way as to ensure the integrity of the data and the confidentiality of applications and offers and to ensure that the procuring authority is aware of the content of the applications and offers only at the expiry of the deadline for the presentation of the applications.
Section 2
Definition of procedures
33
The tender is the procedure by which the procuring authority chooses the attribute, without negotiation, on the basis of objective criteria previously communicated to the candidates.
The tender may be open or restricted.
The call for tenders is said to be open when any economic operator can deliver an offer.
The call for tenders is said to be restricted when only the economic operators who have been authorized to do so can submit offers after selection.
The choice between the two forms of tender is free.
34
A negotiated procedure is a procedure in which the procuring authority negotiates market conditions with one or more economic operators.
35
Adjudicators may enter into negotiated contracts in the cases defined below.
I. - Can be negotiated after prior advertising and competition:
1° Contracts and framework agreements for which, after competitive bidding or dialogue, it was proposed only irregular or unacceptable offers that the procuring power is required to reject. An irregular offer is an offer that, while providing an answer to the need for the procuring authority, is incomplete or does not meet the requirements of the notice of public appeal to competition or in the documents of the consultation. An offer is unacceptable if the conditions for its execution are unaware of the legislation in force, or if the budgetary allocations to the market after assessing the need to be met do not allow the procuring authority to finance it.
However, the initial market conditions must not be substantially modified.
The procuring authority is exempt from proceeding with a new advertising measure if it only involves the negotiation of the offer(s) that, during the previous procedure, have submitted bids in accordance with the requirements for formal tendering deadlines and procedures;
2° Contracts and service framework agreements, including the financial services markets mentioned in the 6th of Article 29 and the intellectual benefits markets such as the design of a work, where the provision of services to be performed is of such nature that the market specifications cannot be established with sufficient precision to allow the use of the tender;
3° Contracts and project framework agreements that are entered into solely for the purposes of immediate commercial research, testing, experimentation or development;
4° In exceptional cases, when it comes to work, supplies or services whose nature or hazards that may affect their realization do not allow for a prior and comprehensive pricing;
5° Contracts and work framework agreements, including between EUR 210 000 HT and EUR 5,270,000 HT.
II. - Can be negotiated without prior advertising and without competition:
1° Contracts and framework agreements concluded to deal with a compelling emergency resulting from unpredictable circumstances for the procuring power and are not in its fact, and whose procurement conditions are not consistent with the deadlines required by the tendering or contracting procedures negotiated with publicity and prior competition, and in particular the contracts concluded to respond to technological emergencies It may also be concluded in accordance with this procedure the contracts made necessary for the execution of the work carried out by procuring authorities pursuant to articles L. 1311-4, L. 1331-24, L. 1331-26-1, L. 1331-28, L. 1331-29 and L. 1334-2 of the Public Health Code and articles L. 123-3, L. 129-2, L. 129-3, L. 129-3, L. These markets are limited to the strictly necessary benefits to cope with the emergency situation.
By derogation from Article 13, where the imperative emergency is incompatible with the preparation of the constitutive documents of the market, the procurement is confirmed by an exchange of letters;
2° Markets and supply framework agreements for products manufactured solely for research, testing, experimentation, study or development purposes, without the objective of profitability or recovery of research and development costs;
3° Contracts and framework agreements passed in accordance with the tender procedure, for which no bids or bids have been filed or for which only inappropriate bids have been filed, provided that the initial market conditions are not substantially amended and that a report is submitted to the European Commission at its request. Is inappropriate an offer that brings an unrelated response to the need for the procuring power and which can therefore be assimilated to a lack of offer;
4° Complementary procurement of supplies, which are carried out by the original supplier and are intended either for the partial renewal of supplies or common use facilities, or for the extension of existing facilities, where the change of supplier would require the procuring authority to acquire a different technical equipment resulting in in incompatibility with the already acquired equipment or technical difficulties of disproportionate use and maintenance. The duration of these complementary markets, including extended periods, cannot exceed three years. The total amount of the contract, including additional deliveries, cannot be equal to or greater than the thresholds set out in Article 26, II unless the contract was initially tendered and was subject to a notice of public appeal to competition published in the Official Journal of the European Union;
5° Complementary contracts of services or works that consist of benefits that do not appear in the initially concluded market but that have become necessary, as a result of an unforeseen circumstance, to the performance of the service or to the realization of the work as described in the initial market, provided that the award is made to the economic operator who has performed this service or carried out this work:
(a) Where such complementary services or work cannot be technically or economically separated from the main market without major disadvantage to the procuring power;
(b) When these services or works, although separable from the execution of the initial market, are strictly necessary for its complete completion.
The cumulative amount of these complementary markets shall not exceed 50 per cent of the principal market amount;
6° Contracts for services or works for the purpose of delivering benefits similar to those that have been entrusted to the holder of a previous contract after competition.
The first market must have indicated the possibility of using this procedure for the realization of similar benefits. Its competition must also have taken into account the total amount envisaged, including that of new services or work. The period during which new markets may be concluded may not exceed three years from the initial market notification;
7° Contracts and service framework agreements that are awarded to one or more contest winners. When there are several winners, they are all invited to negotiate;
8° Contracts and framework agreements that can only be entrusted to a specified economic operator for technical, artistic or exclusive rights protection purposes;
9° Contracts and framework agreements for the purchase of raw materials listed and purchased on the stock exchange;
10° Contracts and framework agreements for the purchase of supplies under particularly advantageous conditions, either from a supplier with a final termination of business or from liquidators of a bankruptcy or similar procedure.
36
The competitive dialogue procedure is a procedure in which the procuring authority conducts a dialogue with the candidates admitted to participate in the process with a view to defining or developing one or more solutions that meet its needs and on the basis of which or where the participants in the dialogue will be invited to provide an offer.
The use of competitive dialogue is possible when a public market is considered complex, i.e. when at least one of the following conditions is met:
1° The procuring power is objectively not able to define in advance the technical means to meet its needs alone;
2° The procuring authority is objectively unable to establish the legal or financial assembly of a project.
The conditions for the use of the competitive dialogue procedure mentioned above are not required for work contracts, which amount to between EUR 210 000 HT and EUR 5,270,000 HT.
For the realization of the works for which the above-mentioned Act of 12 July 1985 applies, the procuring authority may use the competitive dialogue procedure provided that it does not entrust to the economic operator, in addition to the execution, the entire design of the work.
37
A design-realization market is a labour market that allows the procuring authority to entrust to a group of economic operators or, for infrastructure works alone, to a single economic operator, a mission that covers both the establishment of studies and the execution of work.
The procuring powers subject to the provisions of the Act of 12 July 1985 referred to above shall not, pursuant to section 18, I, of that Act, resort to a design-realization market, regardless of the amount, unless there are technical grounds that make it necessary for the association of the contractor to study the work. These reasons are related to the destination or technical implementation of the work. Transactions whose major purpose is a production whose process conditiones the design, realization and implementation as well as operations whose characteristics, such as exceptional dimensions or special technical difficulties, require the use of the proper means and technicality of economic operators.
38
The contest is the procedure by which the procuring authority chooses, after competition and the jury's advice referred to in section 24, a plan or project, particularly in the field of land development, urban planning, architecture and engineering or data processing, before awarding a contract to one of the contest winners.
The contest may be open or restricted.
Participants in the competition are compensated in accordance with the terms and conditions set out in the competition regulations.
Section 3
Advertising organization
39
I. - From the threshold of EUR 750,000 HT for supplies and services and EUR 5,270,000 HT for work, a notice of pre-information, in accordance with the model set by Regulation (EC) No 1564/2005 of the Commission of 7 September 2005 establishing the standard forms for the publication of notices in the framework of the procurement procedures in accordance with Directives 2004/17/EC and 2004/18/EC of the European Parliament and the Council The procurement profile of the procuring power is the dematerialized site to which it uses for its purchases.
The procuring authority that publishes the notice of pre-information on its buyer's profile forwards, electronically, to the Office of Official Publications of the European Union, a notice announcing the publication of this notice. The date of this shipment is mentioned on the pre-information notice published on the buyer's profile.
II. - The publication of a notice of pre-information is mandatory only for the procuring authority which intends to use the ability to reduce the time limits of receipt of tenders under Article 57 and Article 62 II.
III. - For the supply and service markets, this notice indicates the estimated total amount of contracts or framework agreements, for each of the categories of homogeneous products or services, that the procuring authority envisages passing over the next 12 months the publication of the notice.
If it concerns supplies or services to be purchased during a fiscal year, this notice is sent or published on the purchaser profile as soon as possible after the beginning of this fiscal year.
IV. - For work markets, the notice indicates the essential characteristics of the contracts or framework agreements that the procuring authority intends to pass.
The notice is sent or published on the buyer's profile as soon as possible after the decision to carry out a work programme, in which the work contracts or framework agreements that the procuring authorities intend to pass.
40
I. - Apart from the exceptions set out in the fourth paragraph of Article 28 as well as in Article 35 II, any contract or framework agreement of an amount equal to or greater than EUR 4,000 HT is preceded by an advertisement, under the conditions defined below.
II. - For purchases of supplies, services and works in the amount of EUR 4,000 HT and EUR 90,000 HT, as well as for purchases of services under Article 30 I of the amount or more of EUR 4,000 HT, the procuring authority freely selects the terms and conditions of advertising adapted to the market characteristics, including the amount and nature of the work, supplies or services involved.
III. - For supplies and services:
1° For purchases of an amount between 90 000 EUR HT and 135 000 EUR HT for the State or 210 000 EUR HT for the territorial authorities, the procuring authority is required to publish a notice of public tender for competition either in the Official Bulletin of Public Procurement Ads or in a newspaper authorized to receive legal announcements. The procuring authority further appreciates whether, given the nature or amount of the supplies or services involved, a publication in a specialized newspaper corresponding to the relevant economic sector is also necessary to ensure an advertisement in accordance with the principles mentioned in article 1.
2° For purchases of an amount equal to or greater than EUR 135 000 HT for the State and EUR 210 000 HT for territorial authorities, the procuring authority is required to publish a notice of public appeal for competition in the Official Bulletin of Public Markets and the Official Journal of the European Union.
IV. - With regard to work:
1° For purchases of an amount between EUR 90,000 HT and EUR 5,270,000 HT, the procuring authority is required to publish a notice of public tender for competition either in the Official Bulletin of Public Procurement Ads or in a newspaper authorized to receive legal notices. The procuring authority further appreciates whether, given the nature or amount of the work involved, a publication in a specialized newspaper corresponding to the relevant economic sector is also necessary to ensure an advertisement in accordance with the principles mentioned in Article 1.
2° For purchases of an amount equal to or greater than EUR 5,270,000 HT, the procuring authority is required to publish a notice of public appeal to competition in the Official Bulletin of Public Procurement Ads and the Official Journal of the European Union.
V. - The notices of public appeal to competition referred to in 2° of III and 2° of IV shall be issued for publication in the Official Journal of the European Union in accordance with the model set out in Regulation (EC) No 1564/2005 mentioned above. These notices are consistent with the model set out by order of the Minister responsible for the economy when they are prepared for publication in the Public Procurement Ad Bulletin. The procuring authority is not required to include an estimate of the cost of the expected benefits. The procuring authority may choose to publish, in addition to these notices, a notice of public appeal to competition in another publication, under conditions specified by an order of the Minister responsible for the economy.
The notices of public tender for competition referred to in 1° of III and 1° of IV shall be prepared in accordance with the model fixed by order of the Minister responsible for the economy. The procuring authority is not required to include an estimate of the cost of the expected benefits.
VI. - For markets that have passed through a dynamic procurement system, the notice of public tender for competition is a simplified market notice issued for publication in the Official Journal of the European Union in accordance with the model set out in Regulation (EC) No 1564/2005 above.
VII. - Notices to the Official Bulletin of Public Procurement Ads are sent via teleprocedure.
The Official Bulletin of Public Procurement Ads is required to publish notices of public appeal to competition, in accordance with the text transmitted, within six days after the date of their receipt.
When the Official Journals Directorate is unable to publish the edition of the Official Public Procurement Bulletin in its printed version, it may only publish it, on a temporary basis, in its electronic form. In this case, it immediately warns subscribers to the printed version of this bulletin of the temporary interruption of its publication.
VIII. - The publication of the notices in the Official Bulletin of Public Procurement Ads or any other advertising medium may not take place before sending to the Office of Official Publications of the European Union.
These notices may not provide any more information than those contained in the notices to the Agency referred to above or published on a buyer's profile. They mention the date of sending the notice to this office.
IX. - The procuring authority must be able to prove the date of the notices being sent.
Section 4
Information of candidates
41
The documents of the consultation are made up of all documents and information prepared by the procuring authority to define the object, characteristics and conditions of execution of the market or framework agreement.
These documents are provided free of charge for the consultation of candidates to a market or framework agreement. However, the procuring authority may decide that these documents are handed over against the payment of reprography fees. The amount and terms and conditions of payment of these fees are contained in the notice of public competition appeal or in the documents of the consultation.
42
The contracts and framework agreements passed after competition are regulated by the consultation, which is one of the documents of the consultation. This regulation is optional if the references to this regulation are included in the notice of public competition appeal.
For markets that have been passed according to an appropriate procedure, the regulation of the consultation may be limited to the main characteristics of the procedure and the choice of the offer.
Section 5
Bidder prohibitions
43
The prohibitions to bid on the contracts and framework agreements submitted to this Code shall apply in accordance with the provisions of Article 38 of the above-mentioned order of 6 June 2005 and Article 29 of Law No. 2005-102 of 11 February 2005 for the equal rights and opportunities, participation and citizenship of persons with disabilities.
Section 6
Presentation of documents
and information provided by candidates
44
The candidate produced in support of his or her application:
1° A copy of the judgment(s) pronounced, if it is in judicial redress;
2° A statement on honour to justify that he does not enter any of the cases referred to in article 43;
3° Documents and information requested by the procuring authority under the conditions set out in Article 45.
45
I. - The procuring authority may require applicants only information or documents to assess their experience, professional, technical and financial capacities, and documents relating to the powers of the persons authorized to hire them. With regard to the contracts passed for the defence, the procuring authority may also require information relating to their nationality and, if the subject matter or conditions of the market warrant, their prior authorization, or their request for prior authorization, pursuant to Decree No. 98-608 of 17 July 1998 on the protection of the secrets of national defence.
The list of this information and documents is determined by order of the Minister responsible for the economy.
Candidates may only be required at minimum levels of capacity linked and proportioned to the subject matter of the market. The requested documents, information and minimum levels of capacity are specified in the notice of public competition appeal or, in the absence of such notice, in the documents of the consultation.
The same person can no longer represent a candidate for the same market.
II. - The procuring power can ask economic operators to produce quality certificates. These certificates, issued by independent bodies, are based on European standards.
For markets that warrant it, the procuring authority may require the production of certificates, established by independent bodies, and attesting their ability to perform the market.
For contracts of work and services that involve the implementation of environmental management measures, these certificates are based on the Community Environmental Management and Audit System (EMAS) or European or international environmental management standards.
In the cases provided for in the preceding three subparagraphs, the procuring authority shall accept any equivalent means of proof and the equivalent certificates of bodies established in other Member States.
III. - To justify its professional, technical and financial capacities, the candidate, even if it is a grouping, may also request that the professional, technical and financial capacities of other economic operators be taken into account, regardless of the legal nature of the links between these operators and him. In this case, it justifies the capabilities of this or these economic operators and provides evidence that it will have for the execution of the market.
If the candidate is objectively unable to produce, to justify his or her financial capacity, one of the information or documents provided for in the order mentioned in I and requested by the procuring authority, he or she may prove his or her capacity by any other document considered equivalent by the procuring authority.
IV. - may also be requested, if any, information on compliance with the employment obligation referred to in Article L. 323-1 of the Labour Code.
V. - If the documents provided by a candidate under this section are not written in the French language, the procuring authority may require that these documents be accompanied by a certified French translation in accordance with the original by a sworn translator.
46
I. - The candidate to which the contract is considered to be awarded further produces:
1° Parts provided for in articles R. 324-4 or R. 324-7 of the Labour Code; these parts are to be produced every six months until the end of the execution of the market;
2° Certificates and certificates issued by the competent authorities and agencies proving that they have met their tax and social obligations. An order of interested ministers sets out the list of competent administrations and bodies and the list of taxes and social contributions to be issued.
II. - In order to meet the obligations set at 2° I, the candidate established in a State other than France produces a certificate established by the administrations and bodies of the country of origin. Where such a certificate is not issued by the country concerned, it may be replaced by an affidavit, or in States where such an oath does not exist, by a solemn declaration made by the individual before the competent judicial or administrative authority, a notary or a qualified professional body of the country.
III. - The contract may only be awarded to the candidate whose offer has been selected if the candidate produces within the time limit the certificates and certificates provided for in I and II. If it cannot produce these documents within the time limit, its offer is rejected and the candidate eliminated.
The candidate whose offer was ranked immediately after his/her offer is asked to produce the necessary certificates and certificates before the contract is awarded to him/her. If necessary, this procedure may be reproduced as long as offers have not been rejected on the grounds that they are inappropriate, irregular or unacceptable.
IV. - If the documents provided by a candidate under this article are not written in the French language, the procuring authority may require that these documents be accompanied by a certified French translation in accordance with the original by a sworn translator.
47
After signing the contract, in the event of inaccuracy of the documents and information referred to in section 44 and section 46 or refusal to produce the documents provided for in sections R. 324-4 or R. 324-7 of the Labour Code in accordance with 1° of Article 46, the licensee shall apply the conditions of termination provided for by the contract.
Section 7
Presentation of offers
48
I. - The offers are presented in the form of the commitment document defined in Article 11. When electronically transmitted, the offers are accompanied by a signature certificate that meets the requirements of a Minister's order for the economy.
II. - In the notice of public appeal to competition or in the documents of the consultation, the procuring authority may request candidates to indicate in their offer the share of the market that they intend to subcontract to third parties, in particular to small and medium-sized enterprises as defined in article 8 of Order No. 2004-559 of 17 June 2004 on partnership contracts, or to artisans.
49
Regardless of the amount of the market, the procuring authority may require that the offers be accompanied by samples, models or prototypes concerning the subject-matter of the market, as well as a detailed descriptive and estimated estimate with all indications to assess the price proposals. This quotation has no contractual value unless otherwise inserted in the market. When these applications involve a significant investment for candidates, they give rise to a premium.
50
When the procuring authority relies on several criteria for awarding the contract, it may authorize candidates to submit variants.
The procuring authority shall indicate in the notice of public appeal to competition or in the documents of the consultation whether or not it authorizes the variants; if not indicated, the variants are not allowed.
The consultation documents mention the minimum requirements that variants must meet and the terms and conditions of their presentation. Only variants that meet these minimum requirements can be considered.
The variants are offered with the basic offer.
For supplies or services markets, a variant may not be rejected on the sole ground that it would result, if retained, either in a service market instead of a supply market or in a supply market instead of a service market.
Section 8
Groups of economic operators
51
I. - Economic operators are allowed to apply in the form of a joint grouping or grouping, subject to compliance with competition rules.
The grouping is joint when each of the economic operators members of the group undertakes to perform the benefit(s) that are likely to be attributed to it in the market.
The grouping is in solidarity when each of the economic operators members of the group is financially engaged for the entire market.
II. - In both forms of groupings, one of the economic operators members of the group, designated in the act of engagement as agent, represents all members vis-à-vis the procuring power, and coordinates the services of the members of the group.
If the contract provides, the agent of the joint group shall be in solidarity with each member of the group for the performance of the contract with respect to the procuring power.
III. - In the case of a joint grouping, the act of engagement is a unique document that indicates the amount and detailed distribution of the benefits that each member of the group undertakes to perform.
In the event of a solidarity grouping, the act of engagement is a unique document that shows the total amount of the market and all the benefits that the members of the group are committed to achieving.
IV. - Nominations and offers are presented either by all the economic operators grouped, or by the agent if it justifies the authorizations necessary to represent these economic operators at the stage of the procurement. The same economic operator cannot be a proxy for more than one group for the same market.
V. - The composition of the group cannot be changed between the date of submission of applications and the date of signing of the contract. However, if the group proves that one of its members is placed in judicial liquidation or that it is unable to perform its task for reasons that are not in fact, it may request the procuring authority to continue to participate in the procurement proceedings without that failed operator, by proposing, where appropriate, the acceptance of the procuring authority one or more subcontractors. The procuring authority shall decide on this application after examination of the professional, technical and financial capacity of all members of the group so transformed and, where appropriate, subcontractors submitted to its acceptance.
VI. - The notice of public appeal to competition or the regulation of the consultation may prohibit candidates from presenting for the market or some of its lots several offers by acting both:
1° As individual candidates and members of one or more groups;
2° As members of several groups.
VII. - The shift from one form to another may not be required for the presentation of the offer, but the grouping may be compelled to ensure this transformation when the contract was awarded to it, if this transformation is necessary for the proper execution of the market. In this case, the form imposed after attribution is referred to in the notice of public appeal to competition or in the regulation of the consultation.
Section 9
Review of applications and offers
Sub-section 1
Selection of candidates
52
I. - Before proceeding with the examination of applications, the procuring authority which finds that documents whose production was claimed are absent or incomplete may request all the candidates concerned to complete their application within an identical period of time for all who cannot exceed ten days. The Committee shall inform the other candidates who have the opportunity to complete their nomination within the same period of time.
Candidates who are unable to submit to a market pursuant to the provisions of Article 43 or who, if applicable after the implementation of the provisions of the first paragraph, file applications that do not include the documents referred to in Articles 44 and 45 shall not be admitted to participate in the procurement proceedings.
Applications that have not been waived in accordance with the provisions of the preceding paragraph shall be considered with respect to the levels of professional, technical and financial capacity referred to in the notice of public competitive appeal, or, if this is a procedure exempted from sending such notice, in the regulation of the consultation. Applications that do not meet these capacity levels are eliminated.
The absence of references to the execution of markets of the same nature cannot justify the elimination of a candidate and does not exempt the procuring authority from examining the professional, technical and financial capacities of candidates.
The appreciation of the professional, technical and financial capacities of a grouping is comprehensive. It is not required that each member of the group have all the technical skills required to perform the contract.
II. - When the procuring authority decides to limit the number of candidates admitted to bid, the procuring authority shall select these candidates by applying the non-discriminatory and market-related selection criteria for their professional, technical and financial capabilities to the candidates selected in accordance with I. These criteria are mentioned in the notice of public appeal to competition, or, if this is a procedure exempted from sending such notice, in the regulation of the consultation.
Sub-section 2
Attribution of contracts
53
I. - To assign the market to the candidate who presented the most economically advantageous offer, the procuring power is based on:
1° Whether on a variety of non-discriminatory criteria and related to the subject matter of the market, including quality, price, technical value, aesthetic and functional character, performance in the field of environmental protection, performance in the field of professional integration of the struggling public, overall cost of use, profitability, innovative character, after-sales service and technical assistance, delivery date, delivery time or delivery time. Other criteria may be taken into account if justified by the purpose of the market;
2° Either, given the purpose of the market, on a single criterion, which is the price.
II. - For markets that have been contracted on a formalized basis and where several criteria are provided, the procuring authority specifies their weighting.
The weight of each criterion can be expressed by a range of which the maximum deviation is appropriate.
The procuring power that considers it possible to demonstrate that weighting is not possible, in particular because of the complexity of the market, indicates the criteria in descending order of importance.
The criteria as well as their weighting or hierarchy are indicated in the notice of public competition appeal or in the consultation documents.
III. - Inappropriate, irregular and unacceptable offers are eliminated. Other offers are classified in descending order. The best ranked offer is retained.
IV. - 1° When a market is passed, a right of preference is assigned, at equal prices or equivalence of offers, to the offer presented by a cooperative production company, by a group of agricultural producers, by a craftsman, a cooperative company of artisans or by a cooperative company of artists or by appropriate companies.
2° When the markets bear, in whole or in part, benefits that may be carried out by artisans or craftsmen's societies or cooperative companies of craftsmen or worker cooperative societies of production or of suitable enterprises, the contracting powers shall, prior to competition, define the works, supplies or services which, as such, and within the limit of one-quarter of the amount of these benefits, to equivalence
3° When the markets carry, in whole or in part, on works of an artistic character, the preference, at equal prices or equivalence of tenders provided for in 2°, is exercised up to half of the amount of this work, for the benefit of art artisans or cooperative societies of artists.
Sub-section 3
Selection procedure
using electronic auctions
54
I. - An electronic bid is an electronic bid selection process that allows candidates to revise their prices downward and change the value of some other quantifiable elements of their offer.
II. - The procuring authority may only use the electronic auction for supply markets greater than the thresholds set out in II of Article 26.
The procuring authority may not use the electronic auction in an abusive manner or in a manner that prevents, restricts or distorts competition or in a manner that alters the subject matter of the market.
III. - The electronic auction covers the price, other quantifiable criteria or both on the price and other quantifiable criteria.
It comes after a first complete evaluation of the offers allowing their rankings to be performed on the basis of automated processing.
IV. - The procuring authority that decides to use an electronic auction referred to in the notice of public appeal to competition.
The consultation documents contain, at least, the following information:
1° Quantified elements of the offers on which the electronic auction carries;
2° Where applicable, the minimum variation of these elements;
3° The nature of the information that will be communicated to candidates during the electronic auction and the time at which they will be provided;
4° Relevant information on the conduct of the electronic auction, including the conditions under which candidates can bid and the minimum deviations that, if applicable, will be required;
5° Relevant information on the electronic device used and the technical connection specifications and specifications;
6° The duration of the auction.
V. - The electronic auction begins after the bids have been evaluated against the criteria not being auctioned.
All candidates who have submitted bids that have not been rejected on the grounds that they are inappropriate, irregular or unacceptable are invited to participate in the auction simultaneously electronically by presenting new prizes or new values.
When the choice of market attribute is not based on the only price criterion, the invitation to each candidate is accompanied by the result of the evaluation of the offer made under the first paragraph.
The invitation also mentions the mathematical formula that will determine during the electronic auction automatic reclassifications according to the new prices or new values presented. This formula incorporates the weighting of all the criteria set out in the Notice of Public Appeal to Competition or in the consultation documents to determine the most economically advantageous offer.
In cases where variants are allowed, formulas are provided separately for each variant.
VI. - The electronic auction may take place in several phases under conditions specified in the consultation documents. It cannot start less than two business days after the date of the invitations.
VII. - Candidates are informed instantly of their ranking or the result of the best offer. They may also be informed of the number of bidders to the auction and, if the consultation documents provide, of the prizes and values proposed by the other candidates. However, in no case can the identity of the candidates be disclosed during the phases of the electronic auction.
VIII. - The procuring power closes the electronic auction according to one of the following:
1° On the date and time fixed in the invitation to participate in the auction;
2° When no longer receives new auctions under the conditions provided by the invitation to participate in the auction;
3° When all phases of the auction, provided in the invitation to participate in the auction, took place.
IX. - After the closing of the electronic auction, the contract is awarded in accordance with Article 53 I, based on the results of the electronic auction and provided that the successful candidate produces the certificates and certificates referred to in Article 46 I and II, under the conditions fixed by Article III.
Sub-section 4
Abnormally low offers
55
If an offer appears abnormally low, the procuring authority may reject it by reasoned decision after requesting in writing the details it considers useful and verifying the justifications provided. For local authorities and local public institutions, with the exception of public health institutions and public social or medico-social institutions, it is the call for tenders that reject by reason of decision the offers of an abnormally low character.
Can be taken into account justifications, including:
1° The manufacturing of products, the delivery of services, the construction processes;
2° The exceptionally favourable conditions available to the candidate to perform the work, provide the products or perform the services;
3° The originality of the offer;
4° Provisions relating to the working conditions in force where the performance is performed;
5° The possibility of obtaining State aid by the candidate.
An abnormally low offer as a result of obtaining State aid can only be rejected if the candidate is not in a position to prove that this assistance has been legally granted. The procuring power that rejects an offer for this reason informs the European Commission.
Section 10
Communications and information exchange
e-mail
56
I. - The written documents mentioned in this code may be replaced by an electronic exchange or by the production of an electronic physical medium. A backup copy may be sent under conditions fixed by order of the Minister responsible for the economy.
II. - For contracts or framework agreements passed on a formalized basis, the procuring authority shall ensure the confidentiality and security of transactions on a non-discriminatoryly accessible computer network, under the conditions established by a decree of the Minister responsible for the economy.
The network access fees are charged to each candidate.
III. - 1° The procuring authority indicates in the notice of public tender for competition or, for contracts negotiated without prior advertising, in the letter of consultation, the mode of transmission of applications and offers it chooses.
For contracts or framework agreements passed through formalized procedures, the procuring authority cannot refuse to receive applications and offers from economic operators that would not have respected its choice. However, as an experiment, for some markets, the procuring authority may require the transmission of applications and offers electronically. The modalities for the implementation of these experiments are determined by order of the Minister responsible for the economy.
2° Effective January 1, 2010, the procuring authority may require the transmission of applications and offers electronically.
IV. - In the context of the contracts passed according to the grouping procedures provided for in sections 7 and 8, the coordinator designated by the group shall assume the obligations under section 56 to the procuring authority. In the case of applications grouped in accordance with Article 51, the agent shall ensure the safety and authenticity of the information transmitted on behalf of the members of the group.
Chapter IV
Definition and conduct
various public procurement procedures
Section 1
Call for tenders
Sub-section 1
Call for open tenders
57
I. - A notice of public appeal to competition is published under the conditions set out in section 40.
II. - 1° The deadline for receipt of tenders may not be less than fifty-two days from the date the notice of public appeal is sent to competition. This minimum period cannot be reduced for emergency reasons except in the case mentioned in the 3° below.
2° This minimum period may be reduced to twenty-two days when three conditions are met:
(a) The notice of pre-information provided for in Article 39 was published;
(b) This notice was sent to the publication fifty-two days at least and twelve months no later than the date of the notice of public appeal to competition;
(c) It contains the same information as those contained in the notice of public competition appeal, provided that this information is available at the time of the notice of pre-information is sent.
3° For work contracts with a value of less than EUR 5,270,000 HT, the minimum period mentioned in 1° may also be reduced to twenty-two days. In the event of an emergency that does not result from the procuring power, this period may be reduced to fifteen days.
4° The deadlines mentioned in 1°, 2° and 3° can be reduced by seven days when the notice of public appeal to competition is sent electronically.
5° The deadlines mentioned in 1° and 3° may be reduced by five days when the procuring authority provides, electronically and from the publication of the notice of public appeal to competition, free, direct and complete access to the documents of the consultation by indicating in the text of the notice the internet address to which these documents can be consulted.
6° The time reductions mentioned in 4° and 5° may be accumulated unless the procuring power reduced the minimum period to twenty-two days due to the publication of a pre-information notice pursuant to 2°.
III. - When the consultation documents are not accessible electronically, they are sent to the economic operators who request them in due course within six days of their request.
Additional information is sent to the economic operators who request it in good time, no later than six days before the deadline for the receipt of the offers.
IV. - The minimum time limits mentioned in II are extended in the following assumptions:
1° When the deadlines set out in the III cannot be met;
2° Where bids can only be filed following a visit to the market enforcement sites or after consultation on site of additional documents.
Applicants are informed of the new deadline set.
V. - Applicants' files are transmitted by any means to determine in a certain way the date and time of their receipt and to guarantee their confidentiality. They include an envelope containing the application documents and an envelope containing the offer.
58
I. - The opening of the folds is not public; Candidates are not allowed.
Only folds that have been received no later than the date and time limit that have been announced in the notice of public competition appeal may be opened.
Prior to the examination of applications, the procuring authority that finds that parts whose production was claimed are absent or incomplete may request candidates to complete their application in accordance with the provisions of Article 52, I.
II. - Before the opening of the envelopes containing the offers and in view of the only information relating to the applications, applications that cannot be admitted pursuant to the provisions of Article 52 are eliminated by the tender board for the local authorities or after the advice of the tender board for the State, public health institutions and social or meco-social public institutions. Unsuccessful candidates are informed in accordance with Article 80 I.
The envelopes containing the bids of the eliminated candidates are returned to them without being opened.
III. - The tender board opens the envelopes containing the offers and records the contents of the offer.
Inadequate offers within the meaning of 3rd of Article 35, as well as irregular or unacceptable offers within the meaning of 1st of Article 35, are eliminated by the tender board for local authorities or after the advice of the tender board for the State, public health institutions and public social or meco-social institutions.
59
I. - There can be no negotiation with the candidates. It is only possible to ask candidates to specify or complete the content of their offer.
II. - After ranking of offers in accordance with Article 53 III, the most economically advantageous offer is chosen by the tendering board for the territorial authorities or after notice of the tendering board for the State, public health institutions and public social or medico-social institutions, in accordance with the criteria or criteria announced in the notice of public tender for competition or in the regulation of the tender.
It is possible, in agreement with the successful candidate, to develop the market components without these modifications to question the substantial characteristics of the offer or the classification of the offers.
If the candidate whose offer has been selected cannot produce the certificates and certificates referred to in Article 46 I and II, the offer shall be rejected and made in accordance with Article III.
When the candidate whose offer has been selected produces the certificates and certificates referred to in the preceding paragraph, the candidates whose offer has not been chosen shall be informed of the rejection of the offer in accordance with Article 80 I.
The market is notified and an award notice is published.
III. - Where no application or offer has been submitted or when it has been proposed only inappropriate offers within the meaning of 3rd of II of Article 35 or irregular or unacceptable offers within the meaning of 1st of I of Article 35, the call for tenders shall be declared without further or unsuccessful by the call for tenders for territorial authorities or, after notice of the call for public health institutions Candidates who have submitted a file to the procuring authority are informed.
When the tender is declared unsuccessful, it is possible to implement:
1° Either a new call for tenders or, if the initial conditions of the market are not substantially altered, a market negotiated under the conditions set out in 3° of II of Article 35 in the case of inappropriate offers or 1° of Article 35 in the case of irregular or unacceptable offers;
2° Either, if it is a lot that fulfils the conditions referred to in Article 27 III, an appropriate procedure.
For local authorities and local public institutions, with the exception of public health institutions and social and mediocial public institutions, the tendering board chooses the type of procedure to be implemented.
IV. - At any time, the procedure may be declared without action for reasons of general interest. The candidates are informed.
Sub-section 2
Call for limited tenders
60
I. - A notice of public appeal to competition is published under the conditions set out in section 40.
The procuring authority may decide to limit the number of candidates who will be admitted to an offer. He mentions this decision in the notice of public appeal to competition. It sets out in this notice a minimum number of candidates admitted to an offer and may also set a maximum number. This minimum number cannot be less than five.
In addition, the procuring authority may set a minimum number of small and medium-sized enterprises, as defined in section 48, which will be allowed to submit an offer, provided that the number of small and medium-sized enterprises selected under the selection criteria is sufficient. This decision is referred to in the notice of public appeal to competition.
When the number of candidates meeting the selection criteria is less than the minimum number, the procuring authority may continue the procedure with the only candidates selected.
II. - 1° The minimum deadline for receipt of applications, in response to a notice of public appeal to competition, is thirty-seven days, from the date the notice was sent, or thirty days if the notice was sent electronically.
In the event of an emergency that does not result from the procuring authority, this minimum period may be reduced to fifteen days or ten days if the notice has been sent electronically.
2° For work contracts that are less than EUR 5,270,000 HT, the minimum deadline for receipt of applications, in response to a notice of public tender for competition, is twenty-two days, from the date the notice was sent, or fifteen days if the notice was sent electronically.
In the event of an emergency that does not result from the procuring authority, this minimum period may be reduced to fifteen days or ten days if the notice has been sent electronically.
III. - Applications are transmitted by any means to determine the date and time of their receipt and to guarantee confidentiality.
61
I. - The opening of the folds is not public; Candidates are not allowed.
Only folds that have been received no later than the date and time limit that have been announced in the notice of public competition appeal may be opened.
Prior to the examination of applications, the procuring authority that finds that parts whose production was claimed are absent or incomplete may request candidates to complete their application in accordance with the provisions of Article 52, I.
II. - In the light of the only information relating to applications, the list of candidates authorized to submit an offer pursuant to the provisions of Article 52 is established by the tendering board for the local authorities or after the advice of the tendering board for the State, public health institutions and public social or meco-social institutions.
Unsuccessful candidates are informed in accordance with Article 80 I.
62
I. - A consultation letter is sent simultaneously to all selected candidates.
At least this letter of consultation includes:
1° The documents of the consultation, or, if they are not held by the procuring authority, the address of the service to which the consultation documents may be obtained immediately upon request and the deadline for submitting this request, or the conditions of access to such documents if made available directly by electronic means;
2° The date and time limit for receipt of tenders, the address to which they are transmitted and the mention of the obligation to write them in French;
3° References of the notice of public appeal to the published competition;
4° If applicable, the deadline for requesting additional documents;
5° The list of documents to be provided with the offer.
II. - 1° The deadline for receipt of bids cannot be less than forty days from the letter of consultation.
2° This minimum period may be reduced to twenty-two days when three conditions are met:
(a) The notice of pre-information provided for in Article 39 was published;
(b) This notice was sent to the publication at least fifty two days and twelve months no later than the date of the notice of public appeal to competition;
(c) It contains the same information as those contained in the notice of public competition appeal, provided that this information is available at the time of the notice of pre-information is sent.
3° For work contracts with a value of less than EUR 5,270,000 HT, the minimum period mentioned in 1° may also be reduced to twenty-two days.
4° The deadlines for receipt of the offers mentioned in 1°, 2° and 3° may be reduced by five days when the procuring authority provides, by electronic means and from the publication of the notice of public appeal to competition, free, direct and complete access to the documents of the consultation and any supplementary document, indicating in the text of the notice the internet address to which these documents can be consulted.
III. - In the event of an emergency that does not arise as a result of the procuring power, the deadlines for receiving the offers mentioned in II may be reduced to ten days.
IV. - Additional information on the consultation documents is sent to the economic operators who request them in due time, no later than four days before the deadline for the receipt of the offers.
V. - The minimum period referred to in II is extended in the following assumptions:
1° When the time limit provided for in the IV cannot be met;
2° Where bids can only be filed following a visit to the market enforcement sites or after consultation on site of additional documents.
Applicants are informed of the new deadline set.
VI. - The offers are transmitted by any means to determine in a certain way the date and time of their reception and to guarantee their confidentiality.
63
The tendering board proceeds to the opening and registration of offers. The opening session of the folds containing the offers is not public. Candidates are not allowed.
Only folds that have been received by the date and time limit that have been announced in the consultation letter may be opened.
Inadequate offers within the meaning of 3rd of Article 35, as well as irregular or unacceptable offers within the meaning of 1st of Article 35, are eliminated by the tender board for local authorities or after the advice of the tender board for the State, public health institutions and public social or meco-social institutions.
64
I. - There can be no negotiation with the candidates. It is only possible to ask candidates to specify or complete the content of their offer.
II. - After ranking of offers in accordance with Article 53 III, the most economically advantageous offer is chosen by the tendering board for the territorial authorities or, after notice of the tendering board for the State, public health institutions and public social or social institutions, in accordance with the criteria or criteria announced in the notice of public tender for competition or in the regulation of the tender.
It is possible, in agreement with the successful candidate, to develop the market components without these modifications to question the substantial characteristics of the offer or the classification of the offers.
If the candidate whose offer has been selected cannot produce the certificates and certificates referred to in Article 46 I and II, the offer shall be rejected and made in accordance with Article III.
When the candidate whose offer has been selected produces the certificates and certificates referred to in the preceding paragraph, the candidates whose offer has not been chosen shall be informed of the rejection of the offer in accordance with Article 80 I.
The market is notified and an award notice is published.
III. - Where no application or offer has been submitted or when it has been proposed only inappropriate offers within the meaning of 3rd of II of Article 35 or irregular or unacceptable offers within the meaning of 1st of I of Article 35, the call for tenders shall be declared without further or unsuccessful by the call for tenders for territorial authorities or, after notice of the call for public health institutions Candidates who have submitted a file to the procuring authority are informed.
When the tender is declared unsuccessful, it is possible to implement:
1° Either a new call for tender, or if the initial conditions of the market are not substantially altered, a market negotiated under the conditions set out in 3° of II of Article 35 in the case of inappropriate offers or 1° of Article 35 in the case of irregular or unacceptable offers;
2° Either, if it is a lot that fulfils the conditions referred to in Article 27 III, an appropriate procedure.
For local authorities and local public institutions, with the exception of public health institutions and social and mediocial public institutions, it is the tender board that chooses the type of procedure to be implemented.
IV. - At any time, the procedure may be declared without action for reasons of general interest. The candidates are informed.
Section 2
Negotiated procedures
65
I. The negotiated procedure is organized in accordance with the following provisions.
Where a notice of public appeal to competition is to be made, this notice is published under the conditions set out in section 40.
The procuring authority may decide to limit the number of candidates who will be admitted to an offer. He mentions this decision in the notice of public appeal to competition. It sets out in this notice a minimum number of candidates admitted to an offer and may also set a maximum number. This minimum number cannot be less than three.
In addition, the procuring authority may set a minimum number of small and medium-sized enterprises, as defined in section 48, which will be allowed to submit an offer, provided that the number of small and medium-sized enterprises selected under the selection criteria is sufficient. This decision is referred to in the notice of public appeal to competition.
When the number of candidates meeting the selection criteria is less than the minimum number, the procuring authority may continue the procedure with the only candidates selected.
II. - 1° The minimum deadline for receipt of applications, in response to a notice of public appeal to competition, is thirty-seven days, from the date the notice was sent, or thirty days if the notice was sent electronically.
In the event of an emergency that does not result from the procuring authority, this minimum period may be reduced to fifteen days or ten days if the notice has been sent electronically.
2° For work contracts that are less than EUR 5,270,000 HT, the minimum deadline for receipt of applications, in response to a notice of public tender for competition, is twenty-two days, from the date the notice was sent or fifteen days if the notice was sent electronically.
In the event of an emergency that does not result from the procuring authority, this minimum period may be reduced to fifteen days or ten days if the notice has been sent electronically.
III. - Applications are transmitted by any means to determine the date and time of their receipt and to guarantee confidentiality.
IV. - Only folds that have been received no later than the date and time limit that have been announced in the notice of public competition appeal may be opened.
Prior to the examination of applications, the procuring authority that finds that parts whose production was claimed are absent or incomplete may request candidates to complete their application in accordance with the provisions of Article 52, I.
Based on the only information relating to applications, the list of candidates invited to negotiate is established pursuant to the provisions of section 52.
Unsuccessful candidates are informed in accordance with Article 80 I.
66
I. - A consultation letter is sent simultaneously to all selected candidates.
At least this letter of consultation includes:
1° The documents of the consultation or, if not held by the procuring authority, the address of the service to which the consultation documents may be obtained immediately upon request and the deadline for submitting this request, or the conditions of access to such documents if made available directly by electronic means;
2° The date and time limit for receipt of tenders, the address to which they are transmitted and the mention of the obligation to write them in French;
3° References of the notice of public appeal to the published competition;
4° If applicable, the deadline for requesting additional documents;
5° The list of documents to be provided with the offer.
II. - Additional information on the consultation documents is sent to the economic operators who request them in due time, no later than six days before the deadline for the receipt of the offers.
In the event of a reduced delay due to the urgency, this information is communicated to the economic operators who request it in due time no later than four days before the deadline for receipt of the offers.
III. - The deadline for receipt of offers is freely fixed by the procuring authority. It is extended in the following assumptions:
1° When the deadlines set out in II above cannot be met;
2° Where bids can only be filed following a visit to the market enforcement sites or after consultation on site of additional documents.
Applicants are informed of the new deadline set.
IV. - The offers are transmitted by any means to determine in a certain way the date and time of their reception and to guarantee their confidentiality.
V. - Only folds that have been received by the date and time limit that have been announced in the consultation letter may be opened.
Inappropriate bids within the meaning of Article 35, Part 3, are eliminated.
Negotiation is undertaken with the selected candidates. It cannot relate to the subject matter of the market or substantially alter the characteristics and conditions of performance of the market as defined in the documents of the consultation.
Negotiation is conducted in accordance with the principle of equal treatment of all candidates. The information given to the candidates cannot be advantageous to some of them. The procuring authority shall not disclose to other candidates any proposed solutions or confidential information provided by a candidate in the course of the negotiations, without the agreement of the candidate.
The negotiated procedure may take place in successive phases after which some candidates are eliminated, by applying the criteria for the selection of bids established in accordance with section 53 indicated in the notice of public competitive appeal or in the documents of the consultation. The use of this faculty is provided for in the notice of public competition appeal or in the documents of the consultation.
VI. - At the end of the negotiations, following the classification of tenders in accordance with Article 53 III, the most economically advantageous offer is chosen by the tendering board for the local authorities or after the advice of the tendering board for the State, public health institutions and social or mediocial public institutions, in accordance with the criteria or criteria announced in the notice of public appeal to competition.
In the event of an imperious emergency provided for in 1° of II of Article 35, it shall be carried out in accordance with the provisions of the last paragraph of Article 25.
If the candidate whose offer has been selected cannot produce the certificates and certificates referred to in Article 46 I and II, the offer shall be rejected and made in accordance with Article III.
When the candidate whose offer has been selected produces the certificates and certificates referred to in the preceding paragraph, the candidates whose offer has not been chosen shall be informed of the rejection of the offer in accordance with Article 80 I.
The market is notified and an award notice is published.
At any time, the procedure may be declared without action for reasons of general interest. The candidates are informed.
Section 3
Competitive dialogue procedure
67
The competitive dialogue procedure is organized in accordance with the following provisions.
I. - A notice of public appeal to competition is published under the conditions set out in section 40. The requirements and requirements are defined by the procuring authority in this notice and, where appropriate, in a partially defined project or in a functional program.
The terms and conditions of the dialogue are defined in the notice of public appeal to competition or in the documents of the consultation.
The procuring authority may decide to limit the number of candidates admitted to the dialogue. He mentions this decision in the notice of public appeal to competition. It sets out in this notice a minimum number of candidates admitted to an offer and may also set a maximum number. This minimum number cannot be less than three.
In addition, the procuring authority may set a minimum number of small and medium-sized enterprises, as defined in section 48, which will be allowed to submit an offer, provided that the number of small and medium-sized enterprises selected under the selection criteria is sufficient. This decision is referred to in the notice of public appeal to competition.
When the number of candidates meeting the selection criteria is less than the minimum number, the procuring authority may continue the procedure with the only candidates selected.
II. - The minimum deadline for receipt of applications, in response to a notice of public appeal to competition, is thirty-seven days from the date the notice was sent, or thirty days if the notice was sent electronically.
III. - Applications are transmitted by any means to determine the date and time of their receipt and to guarantee confidentiality.
IV. - The opening of the folds is not public; Candidates are not allowed.
Only folds that have been received by the date and time limit that have been announced in the notice of public competition appeal may be opened.
Before conducting the examination of applications, the procuring authority, which finds that parts whose production was claimed are absent or incomplete, may request candidates to complete their file in accordance with the provisions of Article 52 I.
In the light of the only information relating to applications, the list of candidates invited to dialogue is prepared in accordance with the provisions of Article 52.
Unsuccessful candidates are informed in accordance with Article 80 I.
V. - Selected candidates are simultaneously invited, in writing, to participate in the dialogue.
The invitation to participate in the dialogue includes at least:
1° The documents of the consultation or, if not held by the procuring authority, the address of the service to which the consultation documents may be obtained immediately upon request and the deadline for submitting this request, or the conditions of access to such documents if made available directly by electronic means;
2° The references of the notice of public appeal to competition;
3° The date and venue of the dialogue, as well as the obligation to use the French language;
4° If applicable, the deadline for requesting additional information;
5° The list of documents to be provided.
VI. - The dialogue opens with the selected candidates.
The purpose of the dialogue is to identify and define the means to best meet the needs. All aspects of the market can be discussed with the selected candidates.
The procedure can take place in successive phases so as to reduce the number of solutions to be discussed during the dialogue phase by applying the selection criteria for bids, as set out in the Notice of Public Appeal to Competition or in the consultation documents. The use of this faculty is set out in the notice of public competition appeal or in the documents of the consultation.
The dialogue continues until identified, possibly after comparing, the solution(s) that are likely to meet the needs, provided that there are sufficient appropriate solutions.
During the dialogue, each candidate is heard in conditions of equality. The procuring power cannot provide some candidates with information that might benefit them from others. The applicant may not disclose to other candidates any proposed solutions or confidential information provided by a candidate in the course of the discussion, without the agreement of the candidate.
VII. - When it considers that the discussion has come to an end, the procuring authority shall inform the candidates who participated in all phases of the consultation. It invites them to submit their final offer on the basis of the solutions(s) they have presented and specified during the dialogue, within a period not less than fifteen days. The invitation to submit their final offer includes at least the date and time limit of receipt of these offers, the address to which they will be transmitted and the indication of the obligation to write them in French. These offers include all necessary and necessary elements for the realization of the market.
Additional information on the functional programme or the partially defined project is sent to economic operators who request them in due time, no later than six days before the deadline for receipt of final offers.
Details, clarifications, refinements or supplements may be requested from candidates on their final offer. However, these applications may not have the effect of modifying fundamental elements of the final offer, whose variation is likely to distort competition or have a discriminatory effect.
VIII. - After ranking of final offers in accordance with Article 53 III, the most economically advantageous offer is chosen, in accordance with the criteria or criteria announced in the notice of public appeal to competition or in the regulation of the consultation, by the call for tenders for local authorities or after the advice of the tender board for the State, public health institutions and public social or medical institutions.
The successful candidate may be asked to clarify aspects of the offer or to confirm the commitments contained in the offer, provided that this does not alter substantial elements of the offer, distort competition or lead to discrimination.
If the candidate whose offer has been selected cannot produce the certificates and certificates referred to in Article 46 I and II, the offer shall be rejected and made in accordance with Article III.
When the candidate whose offer has been selected produces the certificates and certificates referred to in the preceding paragraph, the candidates whose offer has not been chosen shall be informed of the rejection of the offer in accordance with Article 80 I.
The market is notified and an award notice is published.
IX. - When no final offer has been given or when it has been proposed only irregular or unacceptable offers within the meaning of 1° of Article 35, the competitive dialogue is declared without action or unsuccessful by the call for tenders for the local authorities or, after the advice of the tender commission for the State, for public health institutions and public social or mediocco institutions. Candidates who have submitted a file to the procuring authority are informed.
When competitive dialogue is declared unsuccessful, it is possible to implement:
1° Either a new competitive dialogue, a call for tenders or, if the initial conditions of the market are not substantially altered, a market negotiated under the conditions set out in Article 35(3) II;
2° Either, if it is a lot that fulfils the conditions referred to in Article 27 III, an appropriate procedure.
For local authorities and local public institutions, with the exception of public health institutions and social and mediocial public institutions, it is the tender board that chooses the type of procedure to be implemented.
X. - It may be provided in the regulation of the consultation or in the notice of public tender for competition that a premium will be allocated to all participants in the dialogue or to those whose proposals have been discussed or to those whose offers have been best classified.
The remuneration of the market attribute takes into account the bonus that was eventually paid to it under the preceding paragraph.
XI. - At any time, the procedure may be declared without action for reasons of general interest. The candidates are informed.
Section 4
Other procedures
Sub-section 1
Communications contract
68
When contracts for communications operations are passed in accordance with the competitive dialogue procedure or the negotiated procedure, they may include one or more phases of implementation, the overall amount of which is defined prior to the performance of the market. They then spent for a maximum of four years.
At the end of each phase of completion, the procuring authority may, on the basis of the results obtained, eventually define, after notice of the market owner, among the benefits provided in the market, the new means to be implemented for the next phase, with a view to achieving the objectives of the communication operation.
This consultation of the market holder may not, however, result, without distorting competition or having a discriminatory effect, in altering the essential characteristics of the market.
These markets provide for the ability of the procuring authority to stop their execution after one or more of these phases.
Sub-section 2
Design-realization market
69
For the procuring powers referred to in the second paragraph of Article 37, the design-realization markets are contracts of work passed according to the procedure of the limited tender, whose tenders commission is composed as a jury as defined below, and subject to the following provisions:
A jury is composed of the members of the tender board to which masters of work appointed by the procuring authority are added. These masters are independent of the candidates and the procuring power and are competent with regard to the work to be designed and the nature of the benefits to be provided for its design. They represent at least one third of the jury.
The jury prepares a test report for the examination of applications and provides a reasoned opinion on the list of candidates to be selected. The procuring authority shall determine the list of candidates admitted to performing benefits, which shall be given free of charge the necessary documents for the consultation.
Candidates are performing performances on which the jury decides, after hearing them. These benefits include at least one preliminary summary project for a building work or a preliminary project for an infrastructure work, along with the definition of the technical performance of the work.
The jury prepares a notice of examination of the performance and hearing of the candidates and makes a reasoned opinion.
The procuring authority may request clarifications or clarifications regarding bids filed by candidates. However, these clarifications, clarifications or supplements may not alter fundamental elements of the supply or essential characteristics of the market.
The market is attributed to the jury's opinion. For local authorities and local public institutions with the exception of public health institutions and public social or medico-social institutions, it is the call for tenders that attributes the market.
The consultation regulations provide for the amount of the premiums and the terms and conditions for the reduction or elimination of the premiums of candidates whose jury found that the tenders submitted prior to the hearing were incomplete or did not meet the consultation regulations. The amount of the premium awarded to each candidate is equal to the estimated price of the design studies to be carried out as defined by the consultation regulations, assigned to a maximum of 20%. The remuneration of the market attribute takes into account the premium it received.
Sub-section 3
Competition
70
I. - A notice of public appeal to competition is published under the conditions set out in section 40. The deadlines for receiving applications and offers are those of the tender.
In the case of open competitions, the folds sent by the candidates include a first envelope containing the information relating to their application, a second envelope containing the requested benefits and a third envelope containing their price offer for the realization of the market.
In the event of a restricted competition, the candidates' folds contain the only information relating to their application.
II. - The opening of the folds is not public; Candidates are not allowed.
Only folds that have been received no later than the date and time limit that have been announced in the notice of public competition appeal may be opened.
Before conducting the examination of applications, the procuring authority, which finds that parts whose production was claimed are absent or incomplete, may request candidates to complete their file in accordance with the provisions of Article 52 I.
III. - 1° Nominations are forwarded to the jury that examines them. He makes a report and makes a reasoned opinion.
The list of candidates admitted to compete is stopped and the unsuccessful candidates are informed in accordance with Article 80 I.
2° In open competitions, the second envelope containing the requested benefits and the third envelope containing the offer of prizes are made to the candidates eliminated without being opened.
3° In restricted competitions, the number of candidates admitted to compete cannot be less than three, unless the number of candidates selected under the selection criteria is not sufficient. The procuring authority may decide to limit the number of candidates admitted to compete. He mentions this decision in the notice of public appeal to competition. It sets out in this notice a minimum number of candidates allowed to compete and may also set a maximum number.
When the number of candidates meeting the selection criteria is less than the minimum number, the procuring authority may continue the procedure with the only candidates selected.
Candidates allowed to compete are invited to submit their benefits and a separate envelope containing their price offer for the realization of the market.
IV. - Prior to their presentation to the jury, the benefit envelopes are open. The benefits requested are registered. The procuring authority shall be required to make them anonymous if the estimated amount of the service market to be spent with the recipient is equal to or greater than the thresholds of the contracts passed under formalized procedures. They can be the subject of a preliminary analysis to prepare the jury's work.
V. - Applicants' benefits are then forwarded to the jury that assesses them, verifies compliance with the contest rules and proposes a ranking based on the criteria set out in the notice of public appeal. The jury shall prepare a record of the examination of benefits, in which it shall record its observations and any points requiring clarification, and shall make a reasoned opinion. This report is signed by all members of the jury. Anonymity is respected to the jury's opinion.
VI. - The jury may then invite candidates to answer the questions that it has recorded in this report in order to clarify any aspect of a project. A full report of the dialogue between the members of the jury and the candidates is prepared.
VII. - After receiving the notice and minutes of the jury, and after reviewing the envelope containing the prize, the winner(s) of the contest are chosen by the procuring authority.
Awards are awarded to candidates in accordance with the jury's proposals.
VIII. - The winner(s) are invited to negotiate and the contract that follows the contest is awarded. For local authorities and local public institutions with the exception of public health institutions and public social or medico-social institutions, it is the deliberative assembly that attributes the market.
IX. - If the candidate whose offer has been selected cannot produce the certificates and certificates referred to in Article 46 I and II, the offer shall be rejected and made in accordance with Article III.
When the candidate whose offer has been selected produces the certificates and certificates referred to in the preceding paragraph, the candidates whose offer has not been chosen shall be informed of the rejection of the offer in accordance with Article 80 I.
The market is notified and an award notice is published.
Chapter V
Provisions specific to certain markets
Section 1
Obligation to decorate public buildings
71
The conditions in which the contracts for the purposes of the realizations carried out under legislative or regulatory provisions relating to the obligation to decorate public buildings are specified by decree.
Section 2
Conditional instalment markets
72
The procuring power can pass a contract in the form of a conditional-size market.
The conditional sliced market has a firm slice and one or more conditional slices. The contract defines the consistency, price or terms of determination and the terms and conditions for the performance of each instalment. The benefits of the farm tranche must be a coherent package; the same is true of the benefits of each conditional instalment, taking into account the benefits of all previous instalments. The execution of each conditional sentence is subject to a decision by the procuring authority, notified to the holder under the conditions set out in the contract. If a conditional sentence is established late or not firm, the licensee may, if the contract provides and under the conditions it defines, be entitled to a waiting allowance or a deeds allowance.
Section 3
Definition market
73
When the procuring authority is unable to specify the goals and performance to be achieved, the techniques to be used, the means of personnel and equipment to be implemented, it may use definition markets.
The purpose of these contracts is to explore the possibilities and conditions for the establishment of a subsequent market, if any, through the realization of a model or demonstrator. They also allow to estimate the level of the benefit price, the terms and conditions of its determination and to provide for the different phases of delivery of benefits.
As part of a single procedure, performance benefits resulting from multiple definition markets having the same object and simultaneously executed are awarded after the sole holders of the definition markets compete, in accordance with the following provisions:
1° The notice of public tender for competition defines the purpose of the definition markets passed simultaneously and the subject matter of the subsequent enforcement market;
2° The notice of public tender for competition defines the selection criteria for applications. These criteria take into account the required capabilities and competencies of candidates for both definition markets and the subsequent enforcement market;
3° The notice of public tender for competition defines the criteria for the selection of the offers of the definition markets passed simultaneously and the criteria for the selection of the offers of the subsequent enforcement market;
4° The amount of benefits to be compared to the thresholds takes into account the amount of the definition studies and the estimated amount of the execution market;
5° The number of definition markets passed simultaneously under this procedure cannot be less than three, subject to a sufficient number of candidates.
The contract or framework agreement is awarded by the tendering board for the local authorities or after the advice of the tender board for the State, public health institutions and public social or mediocial institutions.
Section 4
Master's Market
74
I. - The purpose of the master's contracts is, in order to carry out an urban or landscape project, the execution of one or more mission elements defined by Article 7 of the Act of 12 July 1985 referred to above and by the decree of 29 November 1993 referred to above.
II. - Contracts for mastery of work of an amount equal to or greater than the thresholds of formalized contracts set out in Article 26 II are passed according to the procedure of the competition under the conditions specified below. However, they may be passed according to the appropriate procedure when their amount is below the same thresholds. In the case of contracts for mastery of works passed in the appropriate procedure, any rebate of benefits results in the payment of a premium.
III. - The contest mentioned above is a restricted competition organized under the conditions defined in Article 70.
Candidates who have provided benefits in accordance with the contest rules receive a premium. The notice of public tender indicates the amount of this premium. The amount of the award awarded to each candidate is equal to the estimated price of the studies to be carried out by the candidates as defined in the notice of public competitive appeal and specified in the contest rules, assigned to a maximum of 20%.
The remuneration of the master's contract takes into account the premium received for its participation in the contest by the attribute candidate.
For contracts of mastery of work of an amount equal to or greater than the thresholds of the contracts passed according to a formalized procedure, the procuring authority is not required to use the mastery examination in the following cases:
1° For the award of a mastery of work contract relating to the reuse or rehabilitation of existing works;
2° For the award of a mastery of works contract for research, testing or experimentation;
3° For the award of a master's contract that does not entrust any design mission to the licensee;
4° For the award of a master's contract for infrastructure works.
If the procuring authority does not retain the contest procedure, the procedure shall be:
(a) Either that of the call for tenders whose commission is composed as a jury as defined in Article 24 I. In this case, the members of the commission appointed pursuant to the d and e of Article 24 shall have an advisory vote;
(b) Either the negotiated procedure, if the conditions of section 35 are met, after prior advertising and competition in the following manner.
In this case, competition may be limited to the examination of candidates' human and material skills, references and means. The procuring authority, after the jury's opinion as defined in Article 24 I, lists the candidates admitted to negotiate, the number of which cannot be less than three unless the number of candidates is not sufficient. The procuring power is entering into negotiations. At the end of these negotiations, the market is awarded.
IV. - As part of a single procedure, the contract or master's master's master's agreement following several definition markets having the same object and executed simultaneously, may be awarded after competition from the sole holders of the definition markets under the conditions set out in the third paragraph of Article 73.
V. - For local authorities and local public institutions with the exception of public health institutions and public social or medico-social institutions, it is the deliberative assembly that attributes the mastery market(s).
Section 5
Markets in experimental programmes
75
The procuring powers that carry out works that are intended to verify the relevance, on a limited number of accomplishments, of projects selected by the State in the context of a national public program of research, testing and experimentation, may pass, for their realization, contracts of mastery of work or work, at the end of a competition procedure in accordance with the present code, limited to the selected economic operators of the public A protocol of experimentation has passed between the procuring power and the public body responsible for the national program.
Chapter VI
Master Agreement and purchase orders
76
I. - The framework agreements defined in Article 1 shall be passed according to the procedures and under the conditions provided for in this Code. They may provide for a minimum and maximum in value or quantity or be concluded without minimum or maximum.
II. - The contracts passed on the basis of a framework agreement are written documents that specify the characteristics and terms and conditions for the performance of the requested benefits that were not set out in the framework agreement. The conclusion of the contracts passed on the basis of a framework agreement is either when the need arises, or according to a periodicity provided by the framework agreement.
III. - When a framework agreement is awarded to several economic operators, they are at least three, subject to a sufficient number of candidates and offers. The contracts that have passed on the basis of this agreement are preceded by an organized competition between the holders of the framework agreement and comply with the following provisions:
1° When the competition is organized at the time of the need arises and this framework agreement has been divided into lots, only the holders of the lots corresponding to the object of the market based on the framework agreement are consulted;
2° When the competition is organized according to a periodicity provided by the framework agreement, it covers all lots;
3° Regardless of the choice made, the parties may not make substantial amendments to the terms set out in the framework agreement when contracting based on the agreement;
4° The procuring authority sets a sufficient time for the submission of bids taking into account such elements as the complexity of expected benefits or the time required for the transmission of bids.
These offers are proposed in accordance with the specifications set by the framework agreement and the market-specific consultation documents based on the framework agreement. They are transmitted to the procuring authority by any means to determine the date and time of receipt. Their content must remain confidential until the deadline for filing bids expires.
5° The contracts placed on the basis of the framework agreement are attributed to the contract or, if any, to those of the holders of the framework agreement who have presented the most advantageous offers, on the basis of the non-discriminatory criteria set by the framework agreement for the award of these contracts.
IV. - When a framework agreement is awarded to a single economic operator, the procuring authority may, prior to the conclusion of contracts based on the framework agreement, request the holder of the framework agreement to complete, in writing, its offer. The supplements thus provided to the characteristics of the offer chosen for the allocation of the framework agreement cannot substantially alter them.
V. - The duration of the framework agreements may not exceed four years, except in exceptional cases duly justified, including by their object, or by the fact that their execution requires depreciable investments over a period of more than four years.
The conclusion of the contracts under a framework agreement can only be made during the validity of the framework agreement. Their duration of performance shall be determined in accordance with the usual conditions for the performance of benefits under the framework agreement. However, the procuring authority cannot retain a date of procurement and a period of execution such as the execution of the contracts extends beyond the validity date of the agreement under conditions which ignore the obligation of periodic competition from economic operators.
VI. - Markets under a framework agreement can be purchase orders. They then passed according to the rules laid down in this article and executed according to the rules laid down in Article 77.
VII. - For occasional low-value requirements, the procuring authority may address a contractor other than the holder(s) of the framework agreement, provided that the cumulative amount of such purchases does not exceed the sum of EUR 10,000 HT. The use of this option does not exempt the procuring authority from complying with its commitment to placing orders up to the minimum amount of the framework agreement when it is provided.
VIII. - For non-stockable energy purchases that give rise to a framework agreement, the contracts passed on the basis of the framework agreement specify the period during which the supply of energy takes place. The precise amount of energy that will be provided during this period may not be specified in the contracts based on the framework agreement. This quantity is found after the period mentioned in the market.
For non-stockable energy purchases that do not give rise to a framework agreement or to a purchase order, the market determines the consistency, nature and unit price of the energy provided or the terms and conditions of its determination. The market may not indicate the precise amount of energy to be provided during its execution. This will then be observed following the validity of the market.
77
I. - A purchase order deal is a contract with one or more economic operators and executed as orders are issued.
It may provide for a minimum and maximum in value or quantity or be concluded without minimum or maximum.
The issuance of purchase orders is carried out without negotiation or prior competition from the licensees, in accordance with the terms expressly provided by the market.
Order vouchers are written documents to market holders. They specify those of the benefits, described in the market, whose execution is requested and determine the amount.
II. - The duration of purchase orders may not exceed four years, except in exceptional cases duly justified, including by their object or by the fact that their execution requires depreciable investments over a period of more than four years.
The issuance of purchase orders can only take place during the validity of the market. Their duration of performance is determined in accordance with the usual conditions for the performance of the benefits subject to the contract. However, the procuring authority cannot retain a date of issue and a period of execution of such purchase orders, such as the execution of the contracts extends beyond the expiry date of the market under conditions which ignore the obligation of periodic competition from economic operators.
III. - For occasional low-value requirements, the procuring authority may apply to a supplier other than the contract holder(s), provided that the cumulative amount of such purchases does not exceed 1% of the total amount of the contract, nor the sum of EUR 10,000 HT. The use of this option does not exempt the procuring authority from complying with its commitment to placing orders up to the minimum amount of the market when it is provided.
Chapter VII
Dynamic Acquisition System
78
I. - 1° A dynamic procurement system is a fully electronic public procurement procedure for day-to-day supplies, by which the procuring authority assigns, after competition, one or more contracts to one of the operators previously selected on the basis of an indicative offer.
The dynamic acquisition system is created for a maximum of four years, except in exceptional cases duly justified.
To set up a dynamic procurement system, the procuring power follows all phases of the open tender.
2° For the purpose of establishing a dynamic acquisition system, the procuring power:
(a) Publish a notice of public tender to the competition stating that it is a dynamic procurement system and indicating the criteria that will be applied for the selection of contract holders entered into under this system;
(b) Specify, in the consultation documents, the nature of the purchases envisaged under this system, as well as all necessary information regarding the acquisition system, the electronic equipment used and the technical connection modalities;
(c) Provides, electronically, upon publication of the notice and until the expiry of the system, free, direct and complete access to the consultation documents and indicates in the notice the internet address to which these documents can be viewed.
3° The system is open throughout its duration to all economic operators meeting the selection criteria and having submitted an indicative offer in accordance with the consultation documents and any additional documents. Indicative offers can be improved at any time provided they remain in compliance with the consultation documents.
The procuring authority shall conduct an assessment of nominations and indicative offers within a maximum period of fifteen days from the date of their submission. It may extend this evaluation period as long as it does not, in the meantime, undertake any procurement procedures within the dynamic procurement system that may be of interest to the candidates assessed. The procuring authority shall promptly inform the operators of their admission to the dynamic acquisition system or the rejection of their application or of their indicative offer.
The procuring power cannot use this system to prevent, restrict or distort competition.
II. - The markets passed through a dynamic acquisition system, known as specific markets, are subject to competition.
1° Before proceeding to this competition, the procuring authority publishes a simplified market notice in accordance with the above-mentioned Regulation (EC) No 1564/2005, inviting all economic operators, which would not have already submitted an indicative offer as part of the development of the dynamic procurement system, to submit an indicative offer within a period not to be less than fifteen days from the date of sending of the simplified notice. The procuring authority only proceeds to competition after completing the evaluation of all the indicative offers submitted within this timeframe.
2° The procuring authority then invites all candidates admitted to the system to submit a final offer for each specific market to be placed within the system. To this end, it sets a sufficient time to submit offers.
3° The most advantageous offer is chosen by the tendering board for the local authorities or after the advice of the tender board for the State, public health institutions and public social or medico-social institutions, on the basis of the attribution criteria set out in the notice of public competitive appeal published during the establishment of the dynamic procurement system. These criteria may, if applicable, be specified in the invitation referred to in 2°.
If the candidate whose offer has been selected cannot produce the certificates and certificates referred to in Article 46 I and II, the offer shall be rejected and made in accordance with Article III.
When the candidate whose offer has been selected produces the certificates and certificates referred to in the preceding paragraph, the candidates whose offer has not been chosen shall be informed of the rejection of the offer in accordance with Article 80 I.
These contracts are notified and an award notice is published.
No charge fees may be charged to economic operators.
Chapter VIII
Completion of proceedings
79
For contracts and framework agreements passed in accordance with one of the formalized procedures, the procuring authority shall prepare a report on the presentation of the procurement procedure at least:
1° The name and address of the procuring power, the object and value of the market, the framework agreement or the dynamic acquisition system;
2° The name of the successful candidates and the reason for this choice;
3° The name of the excluded candidates and the reasons for their rejection;
4° The reasons for the rejection of offers deemed abnormally low;
5° The name of the licensee and the reasons for choosing its offer, as well as, if known, the share of the market or framework agreement that the licensee intends to subcontract to third parties;
6° With respect to negotiated procedures, the reason for the use of these procedures except in the case of work contracts between EUR 210 000 HT and EUR 5,270,000 HT;
7° With regard to competitive dialogue, the reason for the use of this procedure except in the case of labour markets, which amount to between EUR 210 000 HT and EUR 5,270,000 HT;
8° Where applicable, the reasons why the procuring authority has waived a contract, a framework agreement or a dynamic acquisition system;
9° The indication that supplies originate from a member country of the European Union or from another signatory country to the agreement on public procurement concluded under the World Trade Organization;
In the event of a dematerialized procedure, the procuring authority shall also provide all information on the conduct of the attribution procedures conducted electronically.
When the procuring authority is subject to public control of its markets, the report is communicated at the same time as the contracting authority.
The presentation report or its main elements shall be communicated to the European Commission at its request.
80
I. - 1° For contracts and framework agreements passed in accordance with one of the formalized procedures, the procuring authority shall notify, as soon as it has made its choice on applications or offers, all other candidates for rejection of their applications or offers, indicating the reasons for such rejection.
A period of not less than ten days is met between the date on which the decision to reject is notified to candidates whose offer has not been accepted and the date on which the contract or framework agreement is signed.
In the event of an emergency that fails to meet this 10-day period, it is reduced in proportions appropriate to the situation.
2° However, this deadline is not required:
(a) In compelling emergencies justifying negotiation without prior advertising with a single bidder;
(b) In the case of tenders, negotiated contracts or contracts based on a framework agreement where the contract is awarded to the sole candidate who has submitted an offer that meets the requirements set out in the notice of public competitive appeal or in the documents of the consultation.
II. - When the procuring authority decides not to assign the contract or to resume the proceedings, it shall inform, as soon as possible, candidates of the reasons for its decision. Upon written request from candidates, the answer is written.
III. - The procuring authority shall not disclose information that is disclosed:
(a) Would be contrary to the law, in particular would violate industrial and commercial secrecy;
(b) would be contrary to the public interest;
(c) Could undermine fair competition between economic operators.
81
Except in the case of the exchange of letters provided for in 1° of II of Article 35, the contracts and framework agreements in excess of EUR 4,000 HT are notified before any start of execution.
For contracts and framework agreements passed on a formalized basis, the notification consists of sending a copy of the contract or framework agreement signed to the licensee. The date of notification is the date of receipt of this copy by the holder.
With the exception of the case of the exchange of letters, the contract or framework agreement is effective at that date.
82
For territorial authorities, the contract or framework agreement shall be notified to the holder after transmission, when provided, to the representative of the State of the necessary parts for the exercise of its control.
For public health institutions and social or mediocial public institutions, the market or framework agreement is notified to the holder after receipt, if any, of these documents by the representative of the State.
83
The procuring authority shall, within a period of not more than fifteen days from the date of receipt of a written application, communicate to any excluded candidate who requests the detailed reasons for the rejection of his or her application or offer and, to any candidate whose offer has not been rejected for any reason other than those mentioned in the III of section 53, the characteristics and relative benefits of the chosen offer as well as the name of the contract or attribute.
84
The procuring authority establishes statistical data sheets on the markets it passes and transmits them to the competent authorities of the State, under conditions defined by decree.
85
I. - For contracts and framework agreements giving rise to one of the formalized procedures and for service contracts under Article 30 of an amount equal to or greater than EUR 210 000 HT, the procuring authority shall send for publication, within a maximum period of forty-eight days from the notification of the contract or framework agreement, a notice of award. The procuring authority is exempt from sending an award notice for contracts based on a framework agreement.
The procuring authority sends an opinion on the result of contracting based on a dynamic procurement system no later than 48 days after the notification of each market. However, it may only send a global notice each quarter, no later than 48 days after the end of each quarter.
II. - The notice of award is published in the body that has ensured the publication of the notice of public appeal to competition and in the same manner of transmission as defined in section 40 of this Code.
III. - For supplies and services markets equal to or greater than EUR 135 000 HT for the State and EUR 210 000 HT for territorial authorities and for labour markets equal to or greater than EUR 5,270,000 HT, the notice is prepared for publication in the Official Journal of the European Union in accordance with the model set out in Regulation (EC) No 1564/2005 mentioned above. This notice is consistent with the model set out by order of the Minister responsible for the economy when it is established for publication in the Official Public Procurement Bulletin.
For work contracts between EUR 210 000 HT and EUR 5,270,000 HT, notices are published in the Official Public Procurement Bulletin or in a newspaper entitled to receive legal announcements in accordance with the model set by decree of the Minister responsible for the economy.
IV. - For contracts under Article 30 of an amount equal to or greater than EUR 210 000 HT, the procuring authority shall address the notice of award to the Office of Official Publications of the European Union and the Official Bulletin of Public Procurement announcements, indicating whether it accepts the publication of the notice.
V. - Certain information relating to the procurement of the market or the conclusion of the framework agreement may not be published when their disclosure would impede the application of the laws, would be contrary to the public interest or would prejudice the legitimate business interests of the candidates or could adversely affect fair competition between them.
PART IV
IMPLEMENTATION OF MARKES
Chapter I
Financial system
Section 1
Rules, advances, advances
86
Contracts result in payments as advances, advances, final partial settlements or balances, under the conditions set out in this section.
Sub-section 1
Advances
87
I. - An advance is granted to the holder of a contract where the initial amount of the firming market or tranche is greater than EUR 50,000 HT and to the extent that the delivery time is more than two months. This advance is due to the market owner only on the market share that is not subcontracted.
In the case of a purchase order contract, with a minimum amount of more than EUR 50,000 HT, the advance is granted in one time on the basis of this minimum amount.
In the case of a purchase order contract with no minimum or maximum, the advance is granted for each purchase order with an amount greater than EUR 50,000 HT and a period exceeding two months.
In the case of a purchase order contract, with a minimum amount of more than EUR 50,000 HT, passed pursuant to sections 7 and 8 and where each service or agency proceeds to the payment of the benefits it has ordered, the market may provide that the advance plan is the one that falls within the provisions applicable to the purchase orders contracts that do not have a minimum or maximum.
The licensee may refuse the advance payment.
II. - The amount of the advance shall be fixed, subject to the provisions of Article III and Article 115:
1° 5% of the initial amount, including all taxes, of the market or slice, if their duration is less than or equal to twelve months; if this duration is greater than twelve months, the advance is equal to 5% of a sum equal to twelve times the amount mentioned above divided by this period expressed in months;
2° In the case of a purchase order contract with a minimum amount exceeding EUR 50,000 HT, at 5% of the minimum amount if the contract duration is less than or equal to twelve months; if this duration is greater than twelve months, the advance is equal to 5% of a sum equal to twelve times the minimum amount divided by the market duration expressed in months;
3° In the case of a purchase order contract with no minimum or maximum, or with a minimum and maximum fixed in quantity, for each purchase order with an amount greater than EUR 50,000 HT and a performance period greater than two months, to 5% of the purchase order amount if the duration of the order is less than or equal to twelve months; if this duration is greater than twelve months, the advance is equal to 5% of an amount equal to twelve times the amount of the order form divided by the duration of the order being expressed in the month.
The amount of the advance cannot be affected by the implementation of a price variation clause.
III. - The market may provide that the advance paid to the market holder exceeds the 5% mentioned in the II.
In any event, the advance cannot exceed 30% of the amounts referred to in II.
However, the advance may be extended to a maximum of 60% of the amounts mentioned above, provided that the holder is a first-time guarantee in accordance with the provisions of section 90.
The rate and prepayment conditions are fixed by the market. They cannot be altered by avenging.
IV. - The provisions of this Article shall apply to re-conductable contracts, the amount of the initial period and the renewed contracts, on the amount of each renewal.
V. - The market may provide for an advance in cases where it is not mandatory.
88
I. - The refund of the advance is imputed on the amounts due to the holder, at a rate and the terms fixed by the market by pre-payment on the amounts due as deposits or final partial settlement or balance.
It must, in any event, be completed when the amount of the benefits performed by the licensee reaches 80% of the amount all taxes included in the benefits entrusted to it under the market or the band, the purchase order in the case of a purchase order contract that does not have a minimum or maximum amount, the minimum amount in the case of a purchase order contract with a minimum amount.
II. - In the silence of the market, the refund is imputed on the amounts due to the licensee when the amount of benefits performed by the licensee reaches 65% of the amounts mentioned in I.
III. - The provisions of this Article shall apply to re-conductable contracts, the amount of the initial period and the renewed contracts, on the amount of each renewal.
89
Where the amount of the advance is less than or equal to 30% of the amount of the contract, territorial authorities may condition their payment to the creation of a first-time guarantee covering all or part of the advance refund. Both parties can agree to substitute for this guarantee a personal and solidarity bond.
This provision is not applicable to public bodies holding a market.
90
Where the amount of the advance is greater than 30% of the amount of the contract, the market holder may only receive the advance after a first-demand guarantee. However, the creation of this guarantee is not required by public bodies holding a market.
For contracts for defence purposes, the obligation to establish this guarantee may be removed or arranged by a joint order of the Minister for Defence and the Minister for Economy.
Sub-section 2
Payments
91
The benefits that gave rise to a start of execution of the market are entitled to deposits.
The amount of a deposit cannot exceed the value of the benefits to which it relates.
The periodicity of payment of deposits shall not exceed three months. When the holder is a small or medium-sized company within the meaning of Article 48, a cooperative production company, a grouping of agricultural producers, a craftsman, a cooperative company of artisans, a cooperative company of artists or a suitable company, this maximum is reduced to one month for the labour markets. For supplies and services markets, it is reduced to one month at the request of the licensee.
Sub-section 3
Payments Plan
92
Constitutes a final partial settlement that is not likely to be challenged by the parties after the payment, particularly at the time of the balance.
Construction contracts do not result in final partial regulations.
The deposits do not have the nature of payments that are not likely to be challenged.
93
In the case of separate batch contracts, the holder of several lots presents separate invoices for each batch or a global invoice identifying different batches.
94
When the market includes a price change clause, the final value of the references used for the application of this clause is valued by the date of realization of the benefits as provided by the market, or by the date of their actual realization if the contract is earlier.
When the final value of the references is not known on the date a final deposit or partial payment is to be made, the procuring authority shall make a preliminary settlement based on the last known references.
The payment calculated on the basis of the final reference values shall be made no later than three months after the date on which these values are published.
Where advances are refunded by pre-payment on deposit or balance amounts, the advance shall be made after application of the price change clause on the initial amount of the deposit or balance.
95
In the event of a total or partial termination of the contract, the parties may agree, without waiting for the final disposition of the balance, on an amount of debts and receivables, without any compensation, accepted by them, on an interim basis.
If the balance is payable to the licensee, the procuring authority shall pay 80% of that amount. If it is creditor to the benefit of the procuring power, the licensee shall remit 80% of that amount. A period of time may be granted to the licensee to pay its debt; in this case, the licensee shall provide the guarantee provided for in section 104.
96
Any deferred payment clause is prohibited.
97
The transactions carried out by the holder of a contract that give rise to payment of advances or advances, to a final partial settlement, or to a payment for balance, shall be recorded in a written form established by the procuring authority or verified and accepted by the procuring authority.
98
The overall payment period for a public market cannot exceed 45 days. However, for public health institutions and institutions of the armed health service, this limit is 50 days.
The overrun of the payment period shall be in full right and without any other formality, for the holder of the market or the subcontractor, the benefit of moratorium interest, beginning on the day after the expiry of the period.
A decree specifies the procedure for applying this article.
99
In the event that the market provides for the scheduling of its execution and the payments to which it gives rise, no debt may become due, no moratorium interest may begin to run before the dates so provided by the market.
100
In the event of a termination of the compensable market, if the parties fail to reach an agreement within six months from the date of termination on the amount of the compensation, the procuring authority shall pay to the licensee, upon request, the amount it has proposed.
Section 2
Guarantees
Sub-section 1
Guaranteed
101
The contract may provide, at the expense of the licensee, a security deduction that is collected by fractions on each of the non-prepayments. The amount of the deduction cannot exceed 5 per cent of the initial amount increased, if any, from the amount of the avenors. The sole purpose of the deduction is to cover reserves at the time of receipt of work, supplies or services, as well as those provided, if any, during the warranty period. The warranty period is the time limit, which may be provided by the market, during which the procuring authority may make reservations on defects that were not apparent or whose consequences were not identifiable at the time of receipt.
In the case that the amount of the amounts due to the holder would not allow the deduction to be collected, the holder is required to constitute a first-time guarantee in accordance with the terms and conditions set out in section 102.
This provision is not applicable to public bodies holding a market.
102
The holder may be replaced by a first-time guarantee or, if the procuring authority does not oppose it, by a personal and solidarity bond. The amount of the first-demand guarantee or personal and solidarity bond may not exceed the amount of the deduction they replace. Their object is identical to that of the warranty retention they replace.
The first-demand guarantee or personal and solidarity bond is based on a model set by a Minister's order for the economy.
The organization providing its guarantee is selected from third parties approved by the Committee of Credit Institutions and Investment Companies referred to in Article L. 612-1 of the Monetary and Financial Code. When this body is foreign, it is chosen from among the registered third parties in its country of origin. The procuring authority may challenge the body that must provide its guarantee.
When the market holder is a solidarity group, the guarantee is provided by the agent for the total amount of the contract, including amendments.
When the holder is a joint grouping, each member of the group provides a guarantee for the benefits entrusted to him. If the agent of the joint group is in solidarity with each member of the group, the guarantee may be provided by the agent for the entire market.
In the case that the guarantee or bond would not be incorporated or completed by the date on which the holder submits the claim for payment in respect of the first deposit, the portion of the deduction of the deposit is taken.
The licensee has the option, throughout the market period, to substitute a first-demand guarantee or, if the procuring authority does not object to it, a personal and solidarity bond to the retention of the guarantee. However, this first-demand guarantee or personal and solidarity bond is constituted for the total amount of the market including the amendments. Amounts deducted from the warranty deduction shall be paid to the holder after the substitution guarantee is made.
103
The deduction is refunded no later than one month after the warranty period expires.
In the event of a delay in reimbursement, moratoria interests are paid in accordance with the terms defined by the decree mentioned in article 98.
Institutions that have granted their deposit or guarantee at first request are released no later than one month after the expiration of the warranty period.
However, if reservations have been notified to the market owner or to the establishments that have granted their deposit or collateral at first request during the warranty period and if they have not been lifted before the expiry of that period, the establishments are released from their commitments no later than one month after the date of their termination.
Sub-section 2
Other guarantees
104
In the event of a termination of a contract that has not provided for a retention of security, where a period is granted to the holder, under the conditions set out in section 95, to return to the procuring authority 80% of the amount of the eventual credit that appeared for the benefit of the holder, the holder shall provide a guarantee at first request or, if the procuring authority does not object, a personal and solidarity bond.
105
The terms of reference shall determine, where appropriate, the other guarantees that may be requested from the market holder for the performance of a particular undertaking.
Section 3
Financing
Sub-section 1
Cession or naming
receivables arising from markets
106
The procuring authority shall give the holder either a copy of the original of the market with a duly signed mention, by the licensee, indicating that the exhibit is issued as a single copy in order to allow the licensee to assign or swim claims resulting from the market, or a certificate of thesesibility in accordance with a model defined by order of the Minister responsible for the economy.
The single copy or certificate of thesesibility shall be handed over by the recipient agency of the assignment or the pledge to the assignee accountant as a supporting document for the payment.
Where the required defence secrecy impedes the surrender of a single copy of the contract to the beneficiary, the procuring authority shall issue to the holder a single copy or a certificate of thesesibility containing only the secret-compliant indications.
The holder of the contract may, for any other reason, request that the content of the single copy or certificate of thesesibility be reduced to the indications necessary for the assignment or sale.
If an amendment is made in the designation of the accountant or under the terms of the market regulation, the procuring authority shall record the single copy or certificate of the validity of a statement stating the change.
For any contract with several assignees, the procuring authority provides as many single copies or certificates of thesesibility as accountants, specifying in a statement on each of these documents the accountant to which it must be delivered. Each document mentions only the share of the total debt that the accountant to whom it is transmitted is called to pay.
In the case of a contract with a purchase order or a sliced market, it is issued, at the discretion of the holder, either a single copy or a certificate of market Cessibility, or a single copy or a certificate of Cessibility of each order or of each instalment.
In the case of a contract executed by a joint group, a single copy or a certificate of thesesibility shall be issued to each company limited to the amount of the benefits entrusted to it.
In the case of a market executed by a solidarity group, a single copy or certificate of thesesibility is issued on behalf of the group, provided that the benefits realized by the companies are not individualized. If the benefits are individualized, a single copy or a certificate of thesesibility corresponding to the performance it performs is delivered to each company.
107
The beneficiary of an assignment or a debt claim under a public procurement contract notifies or means that assignment or sale to the assignee public accountant.
This beneficiary pays the amount of the receivable or the share of receivable that was transferred or given to the accountant on its own, from that notification or service to the accountant.
When the assignment or sale of receivables has been made for the benefit of several beneficiaries, each of them pays the share of the receivable that was assigned to it in the assignment or pledge whose records have been notified to the accountant.
In the event of a contracting out of the contract, the licensee shall indicate in the market the nature and amount of the benefits it plans to entrust to subcontractors, under the conditions provided for in section 115 of this Code, direct payment. This amount is deducted from the amount of the contract to determine the maximum amount of the debt that the licensee may assign or give in a claim.
108
In the event of a divestment or dwarf in accordance with sections L. 313-23 to L. 313-34 of the monetary and financial code, the notification provided for in Article L. 313-28 of this code shall be addressed to the designated public accountant in the market in the forms provided for in Article R. 313-17 of that Code.
109
Beneficiaries of receivables or assignments may, during the course of the performance of the contract, request the procuring authority either a summary statement of benefits made, accompanied by an assessment that does not engage the procuring authority, or the count of rights recognized to the holder of the contract; they may also request a statement of advances and deposits made in payment. The person responsible for providing these various information is designated in the market.
The same beneficiaries may request a detailed statement from the accountant of the opposition to the payment of the debt held by the holder of the contract he received.
If the request is made by registered letter with notice of postal receipt, based on their quality, the procuring authority shall notify, together with the holder of the contract, of any changes made to the contract that have an effect on the sale or sale.
They may not require any other information other than those provided above or intervene in any way in the performance of the market.
110
The only suppliers who may benefit from the privilege resulting from Article L. 143-6 of the Labour Code are those who have been approved by the procuring authority under conditions established by decree.
The privilege relates only to supplies delivered after the date on which the application for approval has reached the competent authority.
Sub-section 2
OSEO intervention Development Bank
small and medium-sized enterprises (OSEO BDPME)
111
When BDPME is considering providing cash advances to market holders subject to the provisions of this Code or to the benefit of their subcontractors entitled to direct payment, it may obtain from the procuring authority any supporting evidence validating the existence of the funded receivable.
Chapter II
Subcontract provisions
112
The holder of a public works market, a public service market or an industrial market may subcontract the performance of certain parts of its market provided that they have obtained from the procuring authority the acceptance of each subcontractor and the approval of its terms and conditions of payment.
An industrial market is a market with the purpose of supplying equipment or prototypes specially designed to meet the needs of the procuring power.
113
In the event of subcontracting, the licensee remains personally responsible for the performance of all market obligations.
114
The acceptance of each subcontractor and the approval of its terms and conditions of payment are requested under the following conditions:
1° In the event that the application for subcontracting occurs at the time the offer or proposal is filed, the applicant shall provide the procuring authority with a statement stating:
(a) The nature of subcontracted benefits;
(b) The name, reason or name and address of the proposed subcontractor;
(c) The maximum amount of money to be paid by direct payment to the subcontractor;
(d) The terms and conditions of payment provided for in the draft contract for subcontracting and, where applicable, the terms and conditions for price change;
(e) The professional and financial capacities of the subcontractor.
He also gives him a statement from the subcontractor stating that he does not fall under a ban on access to public markets.
The notification of the contract takes acceptance of the subcontractor and approval of the terms of payment;
2° In the event that the application is filed after the filing of the offer, the licensee shall issue a return against receipt to the procuring authority or address it by registered letter, with a request for notice of receipt, a statement containing the information referred to in 1°.
The licensee further determines that no assignment or sale of receivables arising out of the contract is obstructing the direct payment of the subcontractor, under the conditions set out in section 116, by producing either the single copy or the certificate of thesesibility of the contract that was issued to it, or an attestation or release of the beneficiary of the assignment or pledge of the receivables.
The acceptance of the subcontractor and the approval of the terms of payment are then recognized by a special act signed by both parties.
Figure in the special act the above information mentioned in 1°;
3° If, after notification of the contract, the licensee intends to entrust to subcontractors benefiting from direct payment the performance of benefits in excess of the amount indicated in the contract or special act, the licensee shall request the amendment of the single copy or certificate of thesesibility provided for in section 106 of this Code.
If this copy or certificate of thesesibility has been submitted for the sale or sale of receivables and cannot be returned, the licensee shall justify either that the assignment or sale of receivables in respect of the contract is in such an amount that it does not impede the direct payment of the subcontracted party, or that its amount has been reduced so that such payment is possible.
This justification is given by a certificate from the beneficiary of the assignment or the sale of receivables resulting from the contract.
The procuring authority may not accept a subcontractor or accept its terms and conditions of payment if the single copy or certificate of thesesibility has not been modified or if the justification mentioned above has not been given to it.
Any change in the distribution of benefits between the licensee and the subcontractors paid directly or between the subcontractors themselves also requires the modification of the single copy or certificate of thesesibility or, where applicable, the production of a certificate or a release of the assignee(s);
4° The silence of the procuring power kept for twenty-one days from the receipt of the documents referred to in 2 and 3 shall be accepted by the subcontractor and the conditions of payment.
115
The provisions set out in sections 86 to 100 apply to subcontractors referred to in section 114 taking into account the following particular provisions:
1° When the amount of the contract of subcontracting is equal to or greater than EUR 600, the subcontractor, who has been accepted and whose terms of payment have been approved by the procuring authority, is paid directly for the part of the contract of which it is performing.
However, with respect to the industrial markets passed by the Ministry of Defence, including the procurement of prototypes, manufacturing, assembly, testing, uncurrent or conditional repairs and intellectual benefits, subcontractors are paid directly only if the amount of their subcontract is equal to or greater than 10% of the total amount of the contract;
2° Where a portion of the contract is subcontracted, the advance plate provided for in section 87 is reduced, for the licensee, to the amount corresponding to the benefits in question.
An advance is paid, upon request, to the subcontractors receiving direct payment.
The limits set out in section 87 are valued by reference to the amount of benefits entrusted to the subcontractor as set out in the contract or in the special act referred to in paragraph 2 of section 114.
The right of the subcontractor to an advance is open as soon as the contract or special act is notified by the procuring authority.
The refund of this advance is made in accordance with the terms and conditions set out in section 88.
If the market owner who has received the advance subcontracts a portion of the market after the notification, he or she shall refund the advance corresponding to the amount of the outsourced benefit, even if the subcontractor cannot or does not wish to benefit from the advance.
The repayment by the licensee is imputed on the amounts due to it by the procuring authority upon notification of the special act.
116
The subcontractor shall address his request for payment in the name of the procuring authority to the contract holder, under recommended fold with acknowledgement of receipt, or file it with the holder against receipt.
The licensee shall have a period of fifteen days from the signature of the acknowledgement of receipt or receipt to give an agreement or to notify a refusal, on the one hand, to the subcontractor and, on the other, to the procuring authority or to the person designated by him in the market.
The subcontractor shall also address his request for payment to the procuring authority or to the person designated in the contract by the procuring authority, together with invoices and the acknowledgement of receipt or receipt attesting that the holder has received the request or postal notice attesting that the fold has been refused or has not been claimed.
The procuring authority or the person designated by him in the market shall promptly address to the holder a copy of the invoices produced by the subcontractor.
The procuring authority shall make the payment of the subcontractor within the period provided for in section 98. This period is short from the date of receipt by the procuring authority of the agreement, total or partial, of the holder on the requested payment, or of the expiry of the period referred to in the second paragraph if, during that period, the licensee has not notified any agreement or refusal, or the receipt by the procuring authority of the postal notice referred to in the third paragraph.
The procuring authority shall inform the licensee of the payments it makes to the subcontractor.
117
The subcontractor who has been accepted and whose terms and conditions of payment have been approved may assign or swim, up to the amount of the benefits that are paid directly to him, all or part of his debt.
A copy of the original of the contract or certificate of thesesibility provided for in section 106 or, where applicable, of the special act provided for in section 114 denoting a subcontractor admitted to direct payment, shall be given to each subcontractor receiving direct payment.
Chapter III
Supplementary implementation
118
In the particular case where the amount of the benefits performed reaches the amount provided by the market, the continuation of the performance of the benefits is subject to the condition that the prices indicated to the market be flat or unitary, the conclusion of an avenor or, if so provided by the market, a decision to continue taken by the procuring authority.
PART V
PROVISIONS CONTROL
Single Chapter
Market control
Section 1
Interdepartmental Public Procurement Investigation Mission
and delegations of public service
119
The members of the inter-ministerial investigation mission, established by Article 1 of Act No. 91-3 of 3 January 1991 as amended on the transparency and regularity of contract procedures and subjecting the procurement of certain contracts to rules of advertising and competition, are designated for a period of four years renewable.
The Secretariat of the Interministerial Investigation Mission is provided by the Department of Economics, Finance and Industry's Legal Affairs Directorate.
The head of the inter-ministerial mission organizes and directs the work of the mission. It designates, among mission members, investigators in charge of cases.
120
The investigation of a market with, in whole or in part, a secret nature of national defence can only be entrusted to an investigator who has been previously authorized to know information protected by the texts relating to defence secrets.
121
An account of the nature, date and location of the findings or controls is provided for in the hearings and visits conducted by the member(s) of the investigation mission pursuant to section 2 of the above-mentioned Act of 3 January 1991. The record is signed by the investigator and the person concerned by the investigations. In the event of a refusal to do so, reference is made to the record.
122
The legal representative of the territorial community, the local public institution or the local mixed economy company concerned by the investigation shall have a period of fifteen days from the notification of the report prepared by the interdepartmental mission to make known its possible observations. After this period, the report can be forwarded to the prefect.
The investigation report shall be sent to the administrative authorities who have requested the investigation and to the Prime Minister and, where appropriate, to the public prosecutor in accordance with the provisions of section 40 of the Code of Criminal Procedure.
The inter-ministerial investigation mission may, even after the submission of its report, be consulted by the various competent administrative authorities on the follow-up to it and on all matters relating to the operation of the information contained in the investigation report and the file attached to it.
123
The investigation conducted by the inter-ministerial investigation mission established by section 1 of the Act of 3 January 1991 referred to above shall be carried out without prejudice to the existing controls and shall not interfere with the functions of direction or performance of the services.
124
The Chief of Mission prepares an annual report of activity in which it outlines the results achieved, the difficulties encountered during the investigations and the points on which the most frequent or serious irregularities were found. It proposes measures that would remedy or mitigate them. It assesses the situation over the previous year. This report is addressed to the Prime Minister, the Minister of Justice, and the Minister responsible for the economy.
Section 2
Control of the cost of government procurement
125
The provisions relating to the control of the prices of return under Article 54 of the Financial Law for 1963 (No. 63-156 of 23 February 1963) are applicable to the contracts passed under this Code, under the conditions provided for by Decree No. 64-4 of 6 January 1964 organizing the terms of the control of the prices of return for certain markets.
Section 3
Other State public procurement controls
126
The markets of the State, their amendments, and the decisions to pursue which they may give rise are subject, apart from the controls established by the general texts on the expenses of the State and by this title, to the controls fixed by each minister.
PART VI
OTHER PROVISIONS
Chapter I
Settlement of disputes
Section 1
Amicable Settlement Advisory Committees
or public procurement disputes
127
Adjudicators and public procurement authorities may use ad hoc advisory committees on amicable settlement of disputes or disputes relating to public procurement under conditions established by decree.
The purpose of these committees is to identify elements of law or fact for a friendly and equitable solution.
The referral of a friendly settlement advisory committee interrupts the course of the various requirements.
The referral of the committee suspends the time limits for litigation until the decision of the procuring authority has been taken after notice of the committee.
The composition, organization and operating procedures of the advisory committees, including the specific powers of their chairs, are determined by decree.
Section 2
Arbitration
128
Pursuant to Article 69 of the Act of 17 April 1906 establishing the general budget of expenses and revenues for the year 1906, the State, territorial authorities or local public institutions may, for the liquidation of their expenses of work and supplies, resort to arbitration as set out in Book IV of the new Code of Civil Procedure.
For the State, this remedy is authorized by an order made on the report of the competent minister and the minister responsible for the economy.
Chapter II
State Public Procurement Commission
129
A State Public Procurement Commission provides State services with assistance in the development or procurement of markets. A decree specifies the composition, organization and operating procedures of this commission and the cases in which its referral is mandatory.
Chapter III
Observatoire économique de l'achat public
130
An economic observatory of public procurement placed with the Minister responsible for the economy gathers and analyses data on the economic and technical aspects of the public order. It is also a permanent forum for consultation and exchange of information with economic operators. The missions, composition, organization and operation of the observatory are determined by order of the Minister responsible for the economy.
131
The observatory conducts an annual economic census of the contracts and framework agreements carried out by persons subject to this code and by persons defined in I of Article 3 and Articles 4 and 5 of the above-mentioned order of 6 June 2005. Services that pass the contracts and framework agreements or settle the amounts due under these contracts and framework agreements shall, in accordance with the terms set by decree, transmit the data necessary for this census.
The observatory produces data on the share of public markets obtained by small and medium-sized enterprises within the meaning of Article 48.
132
The Observatoire économique de l'achat public can create market research groups to develop, in particular, technical recommendations, technical clauses or technical guides to facilitate the procurement and execution of public markets. The missions, composition, organization and operating modalities of the market study groups are determined by order of the Minister responsible for the economy.
Chapter IV
List of contracts concluded
133
The procuring authority publishes in the first quarter of each year a list of contracts entered into the previous year as well as the names of attributes. This list is established under the conditions defined by an order of the Minister responsible for the economy.
PART II
APPLICABLE PROVISIONS
ADJUDICATRICES
PART I
PAPLICATION CHAMP
AND FUNDAMENTAL PRINCIPLES
Section 1
Basic definitions and principles
134
I. - The provisions of this Part apply to contracts and framework agreements passed by procuring entities. The procuring entities are the procuring powers defined in Article 2 when they operate one of the network operators listed in Article 135.
II. - The provisions of Article 1 of this Code apply to public contracts and framework agreements passed by procuring entities.
Section 2
Scope
135
The following network operator activities shall be subject to the provisions of this Part:
1° The operation of fixed networks to provide a service to the public in the field of the production, transport or distribution of electricity, gas or heat, the provision of an operator of these networks, or the supply of these networks with electricity, gas, or heat;
2° The operation of fixed networks to provide a service to the public in the field of the production, transport or distribution of drinking water, the provision of a network operator, or the supply of these drinking water networks.
The contracts entered into by the procuring entities carrying on one of the activities mentioned in the preceding paragraph are also subject to the provisions of this Part:
(a) Evacuation or treatment of waste water;
(b) Either hydraulic engineering, irrigation or drainage projects, as long as the volume of water used for drinking water supply mentioned in 2° represents more than 20% of the total volume of water used for these projects;
3° Activities related to the operation of a geographic area to prospect or extract oil, gas, coal or other solid fuels;
4° Activities related to the operation of a geographic area to organize and make available to carriers, airports, marine ports, river ports, or other transport terminals;
5° Networking activities to provide a service to the public in the area of rail transport, trams, trolleybus, bus, bus, bus, cable or any automatic system, or the provision of an operator of these networks.
The transport service is considered to be provided by a transport network where a competent national or territorial authority defines the general conditions for the organization of the service in particular with respect to the routes to be followed, the available transport capacity or the frequency of the service;
6° Activities to provide postal services or services other than postal services referred to in a to f below.
Postal services are services defined in Articles L. 1 and L. 2 of the Post and Electronic Communications Code.
Services other than postal services are the following services, when provided by a procuring entity carrying on one of the activities mentioned in the preceding paragraph:
(a) Mail services management services;
(b) Electronic e-mail services provided entirely electronically, including the secure transmission of electronically coded documents, address management services and the recommended e-mail transmission;
(c) Non-postal mailing services such as mailing without address;
(d) Banking and investment services and insurance services;
(e) The services of philatelia;
(f) Logistics services, involving physical delivery of packages or their deposit to non-postal functions, such as express shipping services.
136
The provisions of this Code shall not apply to the following framework agreements and contracts passed by the procuring entities defined in section 134:
1° Framework agreements and service contracts concluded with a procuring entity subject to this Part or the above-mentioned order of 6 June 2005, where the procuring entity enjoys, on the basis of a legal provision, an exclusive right, provided that this provision is compatible with the Treaty establishing the European Community;
2° Framework agreements and service contracts that are intended to acquire or lease, regardless of the financial terms, land, existing buildings or other real property, or that relate to other rights to such property; However, the financial services contracts concluded in relation to the acquisition or lease contract, in any form, fall within the scope of this Part;
3° Framework agreements and financial services contracts relating to the issuance, purchase, sale and transfer of securities or other financial instruments and the procurement of money or capital of procuring entities, subject to the provisions of 2°;
4° Framework agreements and contracts for research and development services other than those for which the procuring entity acquires exclusive ownership of the results and fully funds the delivery;
5° Framework agreements and contracts, other than those that have passed pursuant to the decree provided for in Article 4 II of this Code, which require secrecy or whose execution must be accompanied by special security measures in accordance with the legislative or regulatory provisions in force or for which the protection of the essential interests of the State requires it;
6° Framework agreements and contracts passed under the procedure specific to an international organization;
7° Framework agreements and contracts passed according to specific procurement rules provided for by an international agreement on the parking of troops;
8° Framework agreements and contracts passed according to specific procurement rules provided for by an international agreement for the realization or joint operation of a project or work;
9° Framework agreements and markets which aim to purchase existing works and art objects, antiques and collection objects;
10° Framework agreements and service contracts relating to arbitration and conciliation;
11° Framework agreements and service contracts for labour contracts.
137
The provisions of this Code shall not apply to contracts and framework agreements passed by procuring entities in the following cases:
1° For the purchase of water, when this purchase is made by a procuring entity carrying the operating activity referred to in the first paragraph of the second paragraph of Article 135;
2° For the purchase of energy or fuel for the production of energy, when this purchase is made by a procuring entity carrying the operating activity defined in 1° and 3° of Article 135;
3° When these entities provided, before April 30, 2004, a bus transport service and other entities provided this service freely under the same conditions.
138
I. - In the hypotheses specified in II below, the provisions of this Code are not applicable to contracts and framework agreements passed by a procuring entity with a business related to the meaning of III.
II. - I of this article shall apply:
1° To framework agreements and service markets where the related company has completed in the three years preceding the year of contracting, at least 80% of its average turnover in services with the public to which it is linked;
2° The framework agreements and supply markets where the related company has completed in the three years preceding the year of contracting, at least 80% of its average turnover in supplies with the public to which it is related;
3° To framework agreements and labour markets when the related company has completed in the three years preceding the year of contracting, at least 80% of its average turnover in respect of work with the public to which it is related.
When the related company was created or began to operate less than three years before the year of contracting the market or the framework agreement, it can only demonstrate, in particular by business projections, that the realization of its turnover, under the conditions set out in 1°, 2° and 3° above, is likely.
Where services, supplies or work, identical or comparable, are provided by more than one enterprise related to the procuring entity, the above-mentioned 80% percentage is valued taking into account all services, supplies or work provided by these undertakings.
III. - Companies related to a procuring entity are companies that are directly or indirectly subject to the dominant influence of a procuring entity within the meaning of IV.
IV. - The influence of procuring entities is deemed to be dominant when they, directly or indirectly, hold the majority of the capital, have the majority of the voting rights or may designate more than half of the members of the administrative, management or oversight body.
V. - The procuring entities shall communicate to the European Commission, upon request, the names of the companies related to the meaning of III, the nature and value of the contracts referred to in I, and any elements that the European Commission considers necessary to prove that the relations between the procuring entity or the agency and the company to which the contracts are awarded meet the requirements of this Article.
139
I. - The provisions of this Code shall not apply:
1° To contracts and framework agreements passed by an agency constituted exclusively by procuring entities to carry out one of the activities referred to in Article 135 with one of these procuring entities;
2° In the contracts and framework agreements passed by a procuring entity with an organization as referred to in 1°, of which it is a party, when the procuring entity was established to operate for a period of not less than three years and, under the statutes of the procuring entity, the procuring entities that constituted the procuring entity are at least stakeholders during that same period.
II. - The procuring entities shall communicate to the European Commission, upon request, the names of the entities and agencies, as well as the nature and value of the contracts referred to in I, and any elements that the European Commission considers necessary to prove that the relations between the procuring entity and the agency referred to in I meet the requirements of this article.
140
The contracts and framework agreements passed for the exercise of a network operator activity in a Member State of the European Union cease to be subject to this Code, as long as the European Commission has found that, in this State, this activity is carried out in competitive markets whose access is not limited.
PART II
GENERAL PROVISIONS
141
The provisions of Part I title II apply to public contracts and framework agreements passed by the procuring entities defined in section 134, subject to the substitution of the words "adjudicative entity" to the words "adjudicative power".
PART III
PASSATION OF MARKES
142
The provisions of Part I title III apply to public contracts and framework agreements passed by the procuring entities defined in Article 134, subject to the provisions of this title and subject to the substitution of the words "adjudicative entity" to the words "adjudicator power".
However, articles 26, 28, 30, 35, 36, 39, 40, 57, 62, 66, 67, 74, 76, 77 and 85 are not applicable.
Chapter I
Call for tenders Commission
143
The provisions of Article 25 shall apply. However, the contract may be awarded without a prior meeting of the call for tenders in the event of an imperious emergency provided for in Article 144, 4° of II.
Chapter II
Definition of thresholds and presentation of procedures
Section 1
Presentation and thresholds of procedures
144
The procuring entities are contracting their contracts and framework agreements under the following conditions.
I. - They choose freely between the following formalized procedures:
1° Negotiated procedure with prior competition;
2° Open or restricted tenders;
3° Competition, defined in Article 38;
4° Dynamic acquisition system, defined in Article 78.
II. - They may also use the negotiated procedure without prior competition in the following cases:
1° For contracts and framework agreements that have not been subject to any appropriate offer or offer within the meaning of 3° of II of Article 35 or for which no application has been filed under a formalized procedure, provided that the initial market conditions are not substantially amended;
2° For contracts and framework agreements concluded solely for the purposes of research, testing, experimentation, study or development without the objective of profitability or recovery of research and development costs and to the extent that the procurement of such a contract does not prejudice the competition of subsequent contracts that pursue such a goal;
3° For markets and framework agreements that can only be entrusted to a specified economic operator for technical, artistic or exclusive rights protection purposes;
4° Contracts and framework agreements concluded to deal with a compelling emergency resulting from unpredictable circumstances for the procuring entity and are not in fact in fact, and whose procurement conditions are not consistent with the deadlines required by the tendering or contracting procedures negotiated with prior competition and, in particular, the contracts entered into to respond to technological emergencies These markets are limited to the strictly necessary benefits to cope with the emergency situation By derogation from Article 13, where the imperative emergency is incompatible with the preparation of the constitutive documents of the market, the procurement is confirmed by an exchange of letters;
5° For complementary markets of supplies that are executed by the original supplier and that are intended either for the partial renewal of supplies or common use facilities, or for the extension of existing facilities, where the change of supplier would require the procuring entity to acquire a different technical equipment resulting in in incompatibility with the already acquired equipment or technical difficulties of disproportionate use and maintenance;
6° For complementary contracts of services or works that consist of benefits that do not appear in the initially concluded market but that have become necessary, as a result of an unforeseen circumstance, to the performance of the service or to the realization of the work as described in the initial market, provided that the award is made to the economic operator who has performed this service or carried out this work:
(a) Where such complementary services or work cannot be technically or economically separated from the main market without major disadvantage to the procuring entity;
(b) When these services or works, although separable from the execution of the initial market, are strictly necessary for its complete completion;
7° For work contracts with the purpose of carrying out works similar to those entrusted to the holder of a previous contract after competition.
The first market must have indicated the possibility of using this procedure for the realization of similar works. Its competition must also have taken into account the total amount envisaged, including the amount of new work;
8° For markets and framework agreements with the purpose of purchasing raw materials listed and purchased on the stock exchange;
9° For contracts under a framework agreement referred to in Article 169;
10° For markets and framework agreements with the purpose of purchasing supplies that it is possible to acquire by taking advantage of a particularly advantageous opportunity that occurs in a very short period of time and which allows to pay a considerably lower price than the normally market prices;
11° For contracts and framework agreements for the purchase of supplies under particularly advantageous conditions, either from a supplier with a final termination of activity or from liquidators of a bankruptcy or similar procedure;
12° For contracts and service framework agreements that are awarded to one or more recipients of a competition. When there are several winners, they are all invited to negotiate.
III. - They may also implement an appropriate procedure under the conditions provided for in Article 146:
(a) When the estimated need is less than EUR 420,000 HT;
(b) For certain lots, under the conditions set out in Article 27 III;
(c) Pursuant to section 148.
IV. - Markets may also be contracted on the basis of a framework agreement under the conditions set out in section 169.
V. - Contracts without prior formalities referred to in the general code of territorial authorities are contracts of less than the threshold set out in III.
Section 2
Method of calculating the estimated value of public procurement,
dynamic acquisition systems and framework agreements
145
The provisions of Article 27 shall apply, subject to the substitution of the words: "at the threshold provided for in Article 144 III" to the words: "at the thresholds provided for in Article 26 II".
Section 3
Appropriate procedure
146
Where their estimated value is less than the threshold referred to in Article 144 III, the markets may be passed according to an appropriate procedure whose terms are freely fixed by the procuring entity according to the nature and characteristics of the need to satisfy, the number or location of the economic operators likely to respond to it and the circumstances of the purchase.
For the determination of these terms, the procuring entity may also be guided by the formalized procedures set out in this Code, provided that the contracts in question are not subject to the formal rules applicable to these procedures. On the other hand, if it specifically refers to one of the formalized procedures provided for in this Code, the procuring entity is required to apply the terms and conditions.
Regardless of its choice, the procuring entity may not require economic operators more information or documents than those provided for in the procedures formalized by sections 45, 46 and 48.
The procuring entity may also decide that the contract will be passed without advertising, or even without prior competition, if the circumstances warrant it, or if its estimated amount is less than EUR 4,000, or in the situations described in Article 144 II.
Section 4
Procedure for service markets
147
The provisions of Article 29 shall apply, subject to the substitution, in 6, the words: "subject to the provisions of 2° and 3° of Article 136" to the words: " subject to the provisions of 3° and 5° of Article 3" and, in 8, to the words: "subject to the provisions of 4° of Article 136" to the words "subject to the provisions of 6° of Article 3".
148
I. - Contracts and framework agreements for services that are not referred to in Article 29 may be entered into, regardless of their amount, by appropriate procedure, under the conditions provided for in Article 146.
II. - However:
1° The provisions of Article 150 III and IV shall not apply;
2° Where the estimated amount of the claimed benefits is equal to or greater than EUR 420,000 HT, they are defined in accordance with the provisions of section 6 and the contract is subject to an award notice under the conditions set out in section 172;
3° Contracts of an amount equal to or greater than EUR 210 000 HT are awarded by the tender board for territorial authorities and after notice of the tender board for the State;
4° The procuring entity shall ensure respect for the ethical principles and regulations applicable, if any, to the professions concerned;
5° Legal services contracts are not subject to the provisions of Part IV of this Part. In addition, those of these markets that are intended to represent a territorial community for the settlement of a dispute are not forwarded to the representative of the State.
III. - Where a contract is intended for both service benefits referred to in section 29 and service benefits not mentioned therein, it has passed in accordance with the rules that apply to those two categories of services whose estimated amount is the highest.
Chapter III
Advertising organization
Section 1
Indicative periodic report
149
I. - From the threshold of EUR 750,000 HT for supplies and services and EUR 5,270,000 HT for work, an indicative periodic notice, in accordance with the model set out in Regulation (EC) No 1564/2005 mentioned above, may be, at least once a year, addressed for publication to the Office of Official Publications of the European Union, published on the buyer profile of the procuring entity. The buyer profile of the procuring entity is the dematerialized site to which it uses for its purchases.
The procuring entity that publishes the indicative periodical notice on its buyer's profile forwards, electronically, to the Official Publications Board of the European Union a notice announcing the publication of this notice. The date of this shipment is indicated on the indicative periodic notice published on the buyer's profile.
II. - The publication of an indicative periodic notice is mandatory only for the procuring entity who intends to use the ability to reduce the deadline for receipt of tenders under Article 160 II.
III. - For supplies and services markets, this notice indicates the estimated total amount of contracts or framework agreements for each of the categories of homogeneous products or services that the procuring entity plans to spend within 12 months of the publication of the notice.
If it concerns supplies or services to be purchased during a fiscal year, this notice is sent or published on the purchaser profile as soon as possible after the beginning of this fiscal year.
IV. - For work contracts, the notice indicates the essential characteristics of the contracts or framework agreements that the procuring entity intends to pass.
The notice is sent or published on the buyer's profile as soon as possible after the decision to carry out a work programme, in which the work contracts or framework agreements that the procuring entities intend to pass.
V. - The procuring entities may publish or publish indicative periodic notices relating to important projects, without repeating the information already contained in an earlier indicative periodic notice, provided that it is clearly mentioned that these notices are additional notices.
VI. - When the procuring entities publish an indicative periodic notice, they communicate to the applicants who request the technical specifications that they are usually included or that they now intend to be included in the markets with the same object as that mentioned in the notice.
Section 2
Notice of public appeal to competition
150
I. - Apart from the exceptions set out in the fourth paragraph of Article 146 as well as in Article 144, any contract or framework agreement of an amount equal to or greater than EUR 4,000 HT is preceded by an advertisement under the conditions defined below.
II. - For purchases of supplies, services and works in the amount of EUR 4,000 HT and EUR 90,000 HT, as well as for purchases of services under section 148 I of the amount or more than EUR 4,000 HT, the procuring entity freely chooses the terms and conditions of advertising adapted to the market characteristics, including the amount and nature of the work, supplies or services involved.
III. - For supplies and services:
1° For purchases of an amount between 90 000 EUR HT and 420 000 EUR HT, the procuring entity is required to publish a notice of public tender for competition either in the Official Bulletin of Public Procurement Ads or in a newspaper authorized to receive legal notices. The procuring entity further appreciates whether, given the nature of the amount of the supplies, services or work involved, a publication in a specialized newspaper corresponding to the relevant economic sector is also necessary to ensure an advertisement in accordance with the objectives mentioned in section 1;
2° For purchases of an amount equal to or greater than EUR 420,000 HT, the procuring entity is required to publish a notice of public appeal to competition in the Official Bulletin of Public Contracts and the Official Journal of the European Union.
IV. - With regard to work:
1° For purchases of an amount between EUR 90,000 HT and EUR 5,270,000 HT, the procuring entity is required to publish a notice of public tender for competition either in the Official Public Procurement Bulletin or in a newspaper authorized to receive legal notices. The procuring entity further appreciates whether, given the nature or amount of the work involved, a publication in a specialized newspaper corresponding to the relevant economic sector is also necessary to ensure an advertisement in accordance with the principles mentioned in Article 1;
2° For purchases of an amount equal to or greater than EUR 5,270,000 HT, the procuring entity is required to publish a notice of public appeal to competition in the Official Bulletin of Public Procurement Ads and the Official Journal of the European Union.
V. - The notices referred to in 2° of III and 2° of IV shall be prepared, for publication in the Official Journal of the European Union, in accordance with the model of market notice or the model of periodic indicative notice or the model of opinion on the existence of a qualification system established by the aforementioned Regulation (EC). These notices are consistent with the model set out by order of the Minister responsible for the economy when they are prepared for publication in the Official Public Procurement Bulletin. The procuring entity is not required to include an estimate of the expected benefit price. The procuring entity may choose to publish, in addition to these notices, a notice of public appeal to competition in another publication under conditions specified by an order of the Minister responsible for the economy.
The notices of public tender for competition referred to in 1° of III and 1° of IV shall be prepared in accordance with the model fixed by order of the Minister responsible for the economy. The procuring entity is not required to include an estimate of the expected benefit price.
VI. - For markets that have passed through a dynamic procurement system, the notice of public tender for competition is a simplified market notice issued for publication in the Official Journal of the European Union in accordance with the model set out in Regulation (EC) No 1564/2005 above.
VII. - Notices to the Official Bulletin of Public Procurement Ads are sent via teleprocedure.
The Official Bulletin of Public Procurement Ads is required to publish notices of public appeal to competition, in accordance with the text transmitted, within six days after the date of their receipt.
When the Official Journals Directorate is unable to publish the edition of the Official Public Procurement Bulletin in its printed version, it may only publish it, on a temporary basis, in its electronic form. In this case, it immediately warns subscribers to the printed version of this bulletin of the temporary interruption of its publication.
VIII. - The publication of the notices in the Official Bulletin of Public Procurement Ads cannot intervene before sending to the Office of Official Publications of the European Union.
These notices may not provide any more information than those contained in the notices to the Agency referred to above or published on a buyer's profile. They mention the date of sending the notice to this office.
IX. - The procuring entity must be able to demonstrate the date of the notices being sent.
151
I. - Where the procuring entity uses as a notice of public appeal to competition the model of the indicative periodic notice, this document shall include the references set out in section 149 and, in addition:
1° Refers specifically to supplies, works or services that will be the subject of the market to pass;
2° Specifies that no notice of public appeal to competition will be published later and invites economic operators to express their interest in writing.
II. - The procuring entity addresses all economic operators who have expressed their interest a letter inviting them to confirm this interest. This letter supplements the indicative periodic notice and includes at least the following information:
1° The nature and quantity of the benefits requested, including those that fall within the scope of possible complementary contracts or renewals, as well as an estimate of the time frame in which the procuring entity will decide to use complementary contracts or renewals;
2° The type of restricted or negotiated procedure chosen;
3° The dates on which the market owner will begin or end the delivery of supplies or the execution of works or services;
4° The address and deadline for filing applications to obtain the documents of the consultation and the requirement to prepare them in the French language;
5° Identification of the service that passes the market and that, if different, that provides the information necessary to obtain the documents of the consultation;
6° The amount and modalities of payment of any amounts to be paid to obtain the documents of the consultation;
7° Information on the required professional, technical and financial capacities of candidates;
8° The attribution criteria, as well as their weighting or hierarchy, if this information is not included in the indicative periodic notice.
The indicative periodic notice becomes invalid if the letter referred to in the first paragraph is not sent within twelve months of the publication of the notice.
Chapter IV
Qualification system
152
I. - A procuring entity may establish and manage an economic operators qualification system. An economic operator qualification system is a pre-selection system of operators deemed to be capable of performing certain types of services.
To create it, the procuring entity publishes a notice on the existence of a qualification system under the conditions set out in section 150. This notice indicates the purpose of the system and the terms and conditions of access to the criteria and rules on which it is based. It fixes its duration or indicates that it is indefinite. In the event that the duration of this system exceeds three years, the publication of the notice is renewed each year.
II. - The qualification system of economic operators is based on objective criteria and qualification rules. Among these criteria, the ability of candidates to meet technical specifications within the meaning of Article 6.
III. - When the procuring entity sets criteria and qualification rules with requirements for the professional, technical and financial capacity of the economic operator, the provisions of section 45 shall apply throughout the validity period of the qualification system.
IV. - The procuring entity ensures that economic operators can at any time ask to be qualified. The qualification criteria and rules are provided upon request. The updated criteria and rules are communicated to them.
V. - The procuring entity may use a qualification system established by a third party. It informs interested economic operators.
153
When it manages a qualification system or uses such a system for the choice of candidates admitted to participate in a restricted or negotiated procedure, the procuring entity ensures equal treatment of economic operators. It can neither impose administrative, technical or financial conditions on certain economic operators that would not have been imposed on others, nor demand tests or justifications that would duplicate objective evidence already available.
154
I. - The economic operator who requests to be qualified shall be informed of the decision made on the subject within four months of the filing of the application. This period may be extended by not more than two months, provided that the economic operator who requests to be qualified is informed of this extension within two months of the request. The reasons for this extension and the date on which a decision will be made are also indicated.
II. - When the procuring entity decides to reject a qualification application, it shall inform the economic operator of the reasons for its decision, within a maximum of fifteen days from the date of that decision. These grounds must be based on the qualification criteria referred to in Article 152 II.
III. - A procuring entity may terminate the qualification of an economic operator only for reasons based on the qualification criteria referred to in Article 152 II. The intention to terminate the qualification is previously notified to the operator, in written reasons, at least fifteen days before the scheduled date to terminate the qualification.
155
A survey of qualified economic operators is maintained by the procuring entity. It is divided into categories by types of markets for which qualification is valid.
Chapter V
Selection of candidates
156
In the case of restricted or negotiated proceedings, the provisions of Article 52 shall apply.
However:
1° The procuring entity may limit the number of candidates admitted to an offer to a level justified by a desire to proportionate the means applied to the requirements of the chosen procedure. The number of successful candidates takes into account the need to ensure sufficient competition.
2° When the procuring entity uses the notice on the existence of the qualification system defined in section 152 as a notice of public tender for competition, candidates admitted to bid are selected from qualified economic operators according to such a system.
Chapter VI
Special tender arrangements
157
The provisions of Article 50 shall apply.
However, where the notice of public tender or consultation documents do not specify whether the variants are allowed, they are allowed.
158
The provisions of Article 54 shall apply, subject to the substitution of the words: "at the threshold fixed in Article 144 III" to the words: "at the thresholds fixed in Article 26 II".
159
When bids submitted as part of a procurement of supplies contain products originating from third countries with which the European Community has not entered into agreements in a multilateral or bilateral framework providing effective access to the markets of the European Community, these offers may be rejected when the share of products originating from third countries exceeds 50% of the total value of the products composing these offers. For the purposes of this article, software used in telecommunications network equipment is considered to be products.
Where two or more offers are equivalent to the award criteria, a preference is given to that of offers that cannot be rejected under the provisions of the preceding paragraph. For the purposes of these provisions, two offers are considered equivalent if the difference between their prices does not exceed 3%.
However, an offer is not preferred to an equivalent offer where this option would lead the procuring entity to acquire equipment with technical characteristics different from those of the equipment it already possesses and would result in technical difficulties of use or maintenance or disproportionate costs.
Chapter VII
Special provisions
procurement procedures
Section 1
Special provisions for open tender
160
Where procuring entities choose the open tender procedure, the following provisions apply.
I. - A notice of public appeal to competition is published under the conditions set out in section 150.
II. - 1° The deadline for receipt of tenders may not be less than fifty-two days from the date the notice of public appeal is sent to competition.
2° This minimum period may be reduced to twenty-two days when three conditions are met:
(a) The indicative periodic notice provided for in Article 149 has been published;
(b) This notice was sent to the publication fifty-two days at least and twelve months no later than the date of the notice of public appeal to competition;
(c) It contains the same information as those contained in the notice of public tender for competition, provided that this information is available at the time of the sending of the indicative periodic notice.
3° For work contracts with a value of less than EUR 5,270,000 HT, the minimum period mentioned in 1° may also be reduced to twenty-two days.
4° If an emergency does not result from the procuring entity, the reduced period referred to in the 3rd may be reduced to fifteen days.
5° The deadlines mentioned in 1°, 2° and 3° can be reduced by seven days when the notice of public appeal to competition is sent electronically.
6° The deadlines mentioned in 1°, 3° and 4° may be reduced by five days when the procuring entity provides, electronically and from the publication of the notice of public appeal to competition, free, direct and complete access to the documents of the consultation by indicating in the notice the internet address to which these documents can be consulted.
7° The deadlines mentioned in 5° and 6° may be accumulated unless the procuring entity reduced the minimum period to twenty-two days following the publication of an indicative periodic notice pursuant to 2°.
III. - When the consultation documents are not accessible electronically, they are sent to the economic operators who request them in due course within six days of their request.
IV. - The additional information requested in due course is sent to economic operators no later than six days before the deadline for receiving the offers.
V. - The minimum time limits mentioned in II are extended in the following assumptions:
1° When the deadlines set out in III and IV cannot be met;
2° Where bids can only be filed following a visit to the market enforcement sites or after consultation on site of additional documents.
Applicants are informed of the new deadline set.
VI. - Applicants' files are transmitted by any means to determine in a certain way the date and time of their receipt and to guarantee their confidentiality. They must include an envelope containing the applicant information and an envelope containing the offer.
161
I. - The provisions of Article 58 shall apply, subject to the deletion, to its III, words: "as well as irregular or unacceptable offers within the meaning of 1° of Article 35".
II. - The provisions of Article 59 shall apply, subject to the deletion, in the first paragraph of its III, the words "or irregular or unacceptable offers within the meaning of 1° of Article 35" and the substitution, in the first paragraph of its III, of the words "in the conditions provided for in 1° of Article 144 in the case of inappropriate offers" to the words "in the circumstances set out in 3
Section 2
Special provisions for restricted tendering
162
Where procuring entities choose the restricted tender procedure, the provisions of Article 60 shall apply.
However:
1° The notice of public appeal to competition is published under the conditions defined in Article 150;
2° When the procuring entity decides to limit the number of candidates who will be admitted to an offer, it is not required to set this minimum number to five;
3° The minimum deadline for receipt of applications, in response to a notice of public appeal to competition or in response to an invitation referred to in section 151, is twenty-two days from the date of the notice or invitation, or fifteen days if the notice was sent electronically.
163
I. - A consultation letter is sent simultaneously to all selected candidates.
At least this letter of consultation includes:
1° The documents of the consultation or, if not held by the procuring entity, the address of the service to which the consultation documents may be obtained immediately upon request and the deadline for submitting this application, or the conditions of access to these documents if made available directly electronically;
2° The date and time limit for receipt of tenders, the address to which they are transmitted and the mention of the obligation to write them in French;
3° References of the notice of public appeal to the published competition;
4° If applicable, the deadline for requesting additional information;
5° The list of documents to be provided with the offer.
II. - The deadline for receipt of tenders may be agreed between the procuring entity and the selected candidates.
In the absence of an agreement on the deadline for receipt of tenders, the procuring entity shall set a time limit that is at least ten days from the date of the letter of consultation.
III. - When the additional information is not made available electronically, it is sent to the economic operators who request it in due time no later than six days before the deadline for receiving the offers.
IV. - The minimum period referred to in II is extended in the following assumptions:
1° When the deadlines set out in the III cannot be met;
2° Where bids can only be filed following a visit to the market enforcement sites or after consultation on site of additional documents.
Applicants are informed of the new deadline set.
V. - The offers are transmitted by any means to determine in a certain way the date and time of their receipt and to guarantee their confidentiality.
164
I. - The provisions of Article 63 are applicable, subject to the deletion of the words: "as well as irregular or unacceptable offers within the meaning of Article 35(1)".
II. - The provisions of Article 64 shall apply, subject to the deletion, in the first paragraph of its III, the words "or irregular or unacceptable offers within the meaning of 1° of Article 35" and the substitution, in the 1st paragraph of the second paragraph of its III, of the words "in the conditions provided for in 1° of Article 144 in the case of inappropriate offers" to the words "in the circumstances provided in 3
Section 3
Special provisions for the negotiated procedure
with competition
165
Where procuring entities choose the procedure negotiated with competition, the provisions of Article 65 shall apply.
However:
1° Where a notice of public appeal to competition is to be made, the notice is published under the conditions set out in section 150.
2° When the procuring entity decides to limit the number of candidates who will be admitted to an offer, it is not required to set this minimum number to three.
3° The minimum deadline for receipt of applications, in response to a notice of contract or in response to an invitation made by the procuring entity under section 151, is twenty-two days from the date of sending the notice or invitation or fifteen days if the notice was sent electronically.
166
I. - A consultation letter is sent simultaneously to all selected candidates.
At least this letter of consultation includes:
1° The documents of the consultation or, if not held by the procuring entity, the address of the service to which the consultation documents may be obtained immediately upon request and the deadline for submitting the application, or the terms and conditions of access to such documents if made available directly electronically;
2° The date and time limit for receipt of tenders, the address to which they are transmitted and the mention of the obligation to write them in French;
3° References of the notice of public appeal to the published competition;
4° If applicable, the deadline for requesting additional information;
5° The list of documents to be provided with the offer.
II. - The deadline for receipt of tenders may be agreed between the procuring entity and the selected candidates.
In the absence of an agreement on the deadline for receipt of tenders, the procuring entity shall set a time limit that is at least ten days from the date of the letter of consultation.
III. - When the additional information is not made available electronically, it is sent to the economic operators who request it in due time no later than six days before the deadline for receiving the offers.
IV. - The minimum period provided for in II is extended in the following assumptions:
1° When the time limit provided for in the III cannot be met;
2° Where bids can only be filed following a visit to the market enforcement sites or after consultation on site of additional documents.
Applicants are informed of the new deadline set.
V. - The offers are transmitted by any means to determine in a certain way the date and time of their receipt and to guarantee their confidentiality.
Section 4
Special provisions for the examination
167
Where procuring entities choose the competition procedure, the provisions of Article 70 shall apply.
However, the notice of public appeal to competition is published in accordance with the provisions of section 150.
Section 5
Specific provisions for mastery of work
168
I. - The purpose of the master's contracts is, in order to carry out an urban or landscape project, the execution of one or more mission elements defined by Article 7 of the Act of 12 July 1985 referred to above and by the decree of 29 November 1993 referred to above.
II. - Contracts for mastery of work less than the threshold provided for in Article 144 III may be passed according to the appropriate procedure provided for in Article 146. In the case of contracts for mastery of works passed in the appropriate procedure, any rebate of benefits results in the payment of a premium.
III. - For contracts of master's work greater than the threshold set out in Article 144 III, the procuring entity may use either the procedure negotiated with competition or, if the conditions referred to in Article 144 II are met, without competition, either at the tender or at the competition proceedings.
1° When the procuring entity chooses the competitively negotiated procedure, competition may be limited to the examination of the candidate's skills, references and human and material means. The procuring entity, after notice of the jury as defined in Article 24 I, lists the candidates admitted to negotiations, the number of which cannot be less than three unless the number of candidates is not sufficient. The procuring entity initiates negotiations. At the end of these negotiations, the market is awarded.
2° When the procuring entity chooses the tendering procedure, the tendering board shall be composed of a jury as defined in Article 24 I. In this case, the members of the commission appointed pursuant to the d and e of Article 24 shall have an advisory vote.
3° When the procuring entity chooses the contest procedure, it shall adhere to the restricted examination procedure as set out in sections 70 and 167.
In addition, for the works to which the provisions of the above-mentioned Act of 12 July 1985 are applicable under section 1, the following provisions are implemented.
Candidates who have provided benefits in accordance with the contest rules receive a premium. The notice of public tender indicates the amount of this premium. The amount of the award awarded to each candidate is equal to the estimated price of the studies to be carried out by the candidates as defined in the notice of public competitive appeal and specified in the contest rules, assigned to a maximum of 20%.
The remuneration of the master's contract takes into account the premium received for its participation in the contest by the attribute candidate.
IV. - As part of a single procedure, the contract or master's master's agreement following several definition markets having the same object and executed simultaneously may be awarded after the competition of only holders of the definition markets, under the conditions set out in the third paragraph of Article 73.
V. - For local authorities and local public institutions with the exception of public health institutions and public social or medico-social institutions, it is the deliberative assembly that attributes the mastery market(s).
Chapter VIII
Specific provisions for framework agreements
and purchase orders
169
The procuring entities may enter into framework agreements and purchase orders under the following conditions:
1° In conclusion of a framework agreement, the procuring entity complies with the rules applicable to one of the formalized procedures defined in Article 144 I. The choice of the holders of the framework agreement and the holders of the contracts passed on the basis of these framework agreements shall be made by application of the criteria defined in accordance with Article 53.
2° Contracts passed on the basis of a framework agreement may be entered into by procuring entities in accordance with the negotiated procedure without prior competition under the conditions set out in 9° of II of Article 144.
3° When contracting on the basis of a framework agreement, the parties may not make substantial amendments to the terms set out in the framework agreement.
4° The duration of the framework agreements and purchase orders contracted by procuring entities is not limited to four years.
Chapter IX
Completion of proceedings
170
The provisions of Article 79 shall apply, subject to the substitution at its 6°, of the words "420 000 EUR HT" to the words "100,000 EUR HT" and the deletion of its 7°.
171
The provisions of Article 81 shall apply, subject to the substitution of the words: "as provided for in Article 144, 4° II" to the words "as provided for in Article 35, 1° II".
172
I. - For contracts and framework agreements giving rise to one of the formalized procedures and for service contracts under section 148 in an amount equal to or greater than EUR 420,000 HT, the procuring entity shall, within two months from the notification of the contract or framework agreement, issue a notice of award. The procuring entity is exempt from sending an award notice for contracts based on a framework agreement.
The procuring entity sends an opinion on the outcome of the procurement based on a dynamic procurement system, no later than two months after the notification of each contract. However, it may only send an overall notice each quarter, no later than two months after the end of each quarter.
II. - The notice of award is published in the body that has ensured the publication of the notice of public appeal to competition and in the same manner of transmission as defined in Article 150 of this Code.
III. - For supplies and services markets in the amount equal to or greater than EUR 420,000 HT and for work contracts in the amount equal to or greater than EUR 5,270,000 HT, the notice is prepared for publication in the Official Journal of the European Union in accordance with the above-mentioned Model Regulations (EC). This notice is consistent with the model set out by order of the Minister responsible for the economy when it is established for publication in the Official Public Procurement Bulletin.
For work contracts between EUR 420,000 HT and EUR 5,270,000 HT, notices are published in the Official Public Procurement Bulletin or in a newspaper entitled to receive legal announcements in accordance with the model set by decree of the Minister responsible for the economy.
IV. - For contracts under section 148 in the amount equal to or greater than EUR 420,000 HT, the procuring entity shall issue a notice of award to the Office of Official Publications of the European Union and the Official Bulletin of Public Contracts, indicating whether it accepts the publication.
V. - The procuring entity may, if it asserts the sensitive commercial nature of the market, not mention certain information regarding the number of bids received, the identity of candidates and the prices.
VI. - When the procuring entity passes a research and development services market through a non-competitive procedure in accordance with the 2nd of Article 144, it may limit information on the nature and quantity of services provided to the reference "research and development services".
When the procuring entity passes a research and development market that cannot be passed through a non-competitive procedure in accordance with Article 144, 2° II, it may limit information on the nature and quantity of services provided where commercial secrecy concerns make this precaution necessary.
In these cases, it ensures that the published information is at least as detailed as those contained in the notice of public competition appeal published in accordance with Article 150.
VII. - If it uses a qualification system, the procuring entity shall ensure that the information published in the award notice is as detailed as the information contained in the statement set out in section 155.
PART IV
IMPLEMENTATION OF MARKES
173
The provisions of Part I title IV apply to public contracts and framework agreements passed by the procuring entities defined in section 134, subject to the substitution of the words "adjudicative entity" to the words "adjudicative power".
PART V
PROVISIONS CONTROL
174
The provisions of Part I title V apply to public contracts and framework agreements passed by the procuring entities defined in section 134, subject to the substitution of the words "adjudicative entity" to the words "adjudicative power".
PART VI
OTHER PROVISIONS
175
The provisions of Part I VI apply to public contracts and framework agreements passed by the procuring entities defined in section 134, subject to the substitution of the words "adjudicative entity" to the words "adjudicative power".
PART III
OTHER PROVISIONS
176
When a public person acts both as a procuring authority and as a procuring entity, he or she may, in order to satisfy a need for both an activity under Part 1 of this Code and an activity under Part 2 of the Code, enter a single market or enter two separate markets, but that choice may not be made with the aim of subtracting these contracts from the scope of this Code.
When she chooses to spend only one market:
1° If the need to be met is primarily related to its procuring power activity, the applicable rules are those of the first party;
2° If the need to be met is primarily related to its procuring entity activity, the applicable rules are those of Part Two.
If it is impossible to establish to whom the market is primarily intended, the procuring power or the procuring entity, the applicable rules are those of the first part of this code.
If a market is related to an activity that falls within the scope of Part Two and an activity that does not fall within the scope of Part One, or in the scope of Part Two, if the market is primarily related to the first of the activities or if it is impossible to establish to which of these two activities the market is primarily intended, the applicable rules are those of Part Two of this Code.
177
The provisions of this Code apply to Saint-Pierre-et-Miquelon subject to the following modifications:
1° The e of Article 24 is not applicable.
2° Article 40 III is as follows:
"III. - For supplies and services:
1° For markets of an amount between EUR 90,000 HT and EUR 210 000 HT, the procuring authority is required to issue a notice by radio under conditions such that it can generate sufficient competition and publish a notice of public appeal to competition either in a local publication or, if the characteristics and the amount of the market justify it, in the Official Gazette of the Public Markets or in an authorized newspaper
2° For markets, framework agreements, dynamic acquisition systems, and markets passed on the basis of a dynamic acquisition system, of an amount equal to or greater than EUR 210 000, the procuring power is required, on the one hand, to issue a notice by radio under conditions such that it can generate sufficient competition or publish a notice of public appeal to competition »
3° Article 40 IV is as follows:
"IV. - With regard to the work:
1° For markets of an amount between EUR 90,000 HT and EUR 5,270,000 HT, the procuring authority is required to issue a notice by radio under conditions such that it can generate sufficient competition and publish a notice of public appeal to competition either in a local publication or, if the characteristics and the amount of the market justify it, in the Official Gazette of the public markets or in a legal journal
2° For markets and framework agreements of an amount equal to or greater than EUR 5,270,000 HT, the procuring authority is required, on the one hand, to issue a notice by radio in such conditions that it can generate sufficient competition or publish a notice of public appeal to competition in a local publication and, on the other hand, Pierre publish a notice of public appeal to competition in the official market »
Done in Paris on 1 August 2006.
Dominique de Villepin
By the Prime Minister:
Minister of Economy,
finance and industry,
Thierry Breton
The Minister of State,
Minister of Interior
and landscaping,
Nicolas Sarkozy
The Minister of Defence,
Michèle Alliot-Marie
Minister of Foreign Affairs,
Philippe Douste-Blazy
The Minister of Employment,
social cohesion and housing,
Jean-Louis Borloo
Minister of National Education,
higher education
and research,
Gilles de Robien
The Seal Guard, Minister of Justice,
Pascal Clément
Minister of Transport, Equipment,
tourism and the sea,
Dominica Perben
Minister of Health and Solidarity,
Xavier Bertrand
Minister of Agriculture and Fisheries,
Dominic Bussereau
The Minister of Public Service,
Christian Jacob
Minister of Culture
and communication,
Renaud Donnedieu de Vabres
Minister of Ecology
and Sustainable Development
Nelly Olin
The overseas minister,
François Baroin
Minister of Small and Medium Enterprises,
Trade, Crafts
and liberal professions,
Renaud Dutreil
Minister of Youth, Sports
and associative life,
Jean-François Lamour
Minister for Budget
and the reform of the state,
Government spokesperson,
Jean-François Copé
