Key Benefits:
Paris, 3 August 2006.
Minister of Economy, Finance and Industry and Minister Delegate for Budget and State Reform, Government Spokesperson, Ministers and Ministers Delegate
Warning
Decree No. 2006-975 of 1 August 2006 on the Code of Public Procurement is published in the Official Journal of this day. It comes into force on 1 September 2006.
Transitional measures have been planned to avoid the consequences of a sharp change in the rules in the procurement process. According to the provisions of Article 8 of the above-mentioned Decree:
1. The contracts notified prior to September 1, 2006 remain subject to passation as well as to the enforcement of only the provisions of the Public Procurement Code in force until August 31, 2006 (i.e. the amended January 7, 2004 Code), both for their procurement and for their execution. The difficulties and disputes that may arise in these markets will therefore not be affected by the provisions of the new Public Procurement Code 2006.
2. The contracts for which a consultation has been initiated or a notice of public competitive appeal has been sent as of 1 September 2006 will be subject to the only provisions of the new Public Procurement Code for both procurement and enforcement. The difficulties and disputes that may arise in these markets will no longer be affected by the provisions of the Public Procurement Code 2004.
3. The contracts for which a consultation has been initiated or a notice of public tender has been sent before September 1, 2006, the market being notified after that date, will be, for their sole purpose, the provisions of the Public Procurement Code in force until August 31, 2006 and, for their sole purpose, the provisions of the new Public Procurement Code. Difficulties and disputes concerning their procurement, including advertising rules, the production of tax and social certificates, the choice of candidates and offers, will only be affected by the provisions of the code in force until 31 August 2006, while the difficulties and disputes relating to enforcement, including the actors, the conditions of termination, payment, will only be affected by the provisions of the new code 2006.
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Circular NOR: ECOZ0300024C of 7 January 2004 as amended for the application of the public procurement code is repealed.
CONTENTS
1. Who must apply the public procurement code?
1.1. People subject to the public procurement code.
1.2. Organizations not subject to the public procurement code.
2. Is the contract considered a public market?
2.1. A public market is a contract.
2.2. A public market is concluded on an expensive basis.
2.3. A public market can be passed with public or private people.
2.4. A public market is a contract that must meet the needs of the administration for supplies, services and works.
2.4.1. Public markets differ from subsidies.
2.4.2. Public procurement is also distinguished from public service delegations.
2.4.3. Public markets are also distinguished from public-private partnerships.
2.4.4. Public markets differ from a set of other legal instruments under public order and allowing the procuring authorities to involve private partners in the realization of works.
2.5. The special case of mandate contracts.
3. What exceptions are
the application of the public procurement code?
3.1. The integrated services called "in house" (art. 3 [1°]).
3.2. The granting of an exclusive right (art. 3 [2°]).
3.3. Contracts for research and development programmes (art. 3 [6°]).
3.4. Contracts that require secrecy or whose execution must be accompanied by special security measures or for which the protection of the essential interests of the State requires it (art. 3 [7°]).
3.5. Specific exclusions (art. 3-15).
4. How should the buyer determine its needs?
4.1. Why do you need to identify the needs?
4.2. Exceptions limited to the precise definition of needs.
4.3. The requirement to determine its needs by reference to technical specifications.
4.4. Of the interest of the variants.
4.5. Who defines needs?
5. Buy alone or bundled?
5.1. As part of a command group?
5.2. By using a shopping centre?
5.3. Order coordination?
6. What form of market adopt?
6.1. The choice of market devolution mode.
6.1.1. Leasing and single market.
6.1.2. Small lots.
6.2. Processes of "divided" and market planning in time.
6.2.1. The purchase orders.
6.2.2. The framework agreement.
6.2.3. The case of energy purchases.
6.2.4. Conditional contracts.
6.3. The Dynamic Acquisition System (ADS).
7. How do we know if we're over a threshold?
7.1. For work markets: the concepts of work and operation.
7.1.1. The concept of work operation.
7.1.2. The concept of work.
7.2. For supplies and services markets: the homogeneous nature.
8. How to communicate its needs
potential candidates?
8.1. Why do you need to advertise?
8.2. How to advertise?
8.2.1. Below the threshold of 4,000 HT.
8.2.2. Between the thresholds of 4,000 HT and 90,000 HT.
8.2.3. Between the 90,000 HT threshold and community thresholds.
8.2.4. Above community thresholds.
8.3. Additional advertising.
8.4. A few very limited exceptions: articles 28 (fourth paragraph) and 35-II.
9. How to compete?
9.1. Why should we compete?
9.2. A fundamental principle.
9.3. How to achieve effective competition?
9.3.1. Below formalized procedural thresholds.
9.3.2. Above formalized procedural thresholds.
9.3.2.1. Supply and service markets.
9.3.2.2. Labour markets.
9.4. The particular case of the framework agreements and service markets of Article 30.
9.5. A few very limited exceptions: cases where the code does not require competition (articles 28, fourth paragraph, and 35-II).
10. How to select the candidates?
10.1. What should a nomination file contain?
10.2. What are the procedures for selecting candidates and the documents and information to be provided?
10.2.1. Does the company have the capacity to execute the market?
10.2.2. What are the criteria for selecting candidates?
10.2.3. How can SMEs gain access to public order in the selection of applications?
10.3. What happens if the candidate's file is incomplete?
10.4. What are the documents to be produced by the candidate to whom the contract is envisaged?
10.5. How to dematerialize formalized public markets?
10.5.1. When transmitting electronically, do you need to sign electronically, how?
10.5.2. What is an electronic signature certificate and how to get one?
10.5.3. What is a backup copy and what role does it have?
10.5.4. What about the markets passed according to the appropriate procedure (MAPA)?
10.5.5. Is the dematerialization of public markets measured?
10.5.6. Where can I find more information on public procurement dematerialization?
11. When can we negotiate?
11.1. What assumptions can we negotiate?
11.1.1. Below the formalized market thresholds.
11.1.2. Above the formalized market thresholds.
11.1.2.1. Contract categories negotiated.
11.1.2.2. What is the role of the tender board in the negotiated procedure?
11.1.3. The competitive dialogue procedure.
11.2. What are the advantages of negotiation?
11.3. What are the constraints of negotiation?
12. How to choose the supply economically
The most advantageous?
12.1. What are the criteria on which the public purchaser will rely to choose the most economically advantageous offer?
12.2. How can environmental concerns be integrated into public procurement?
12.3. Can we address suitable companies or work-assisted institutions and services?
13. How to inform candidates of rejection
their application or offer?
14. How to contribute to good execution
public procurement?
14.1. The direct payment of the subcontractor.
14.2. Payment of advances to public contract holders.
14.3. Payment of deposits to public contract holders.
14.4. The supervision of the financial guarantees required of public procurement holders.
14.5. The obligation of the procuring authority to respect a global payment period.
14.6. The possibilities of refinancing through transfers or pledges from public procurement.
14.7. Opportunities to modify the initial contract by complementary amendments and contracts.
14.8. The possibility to execute beyond the initial contract by a decision to pursue.
15. Why do posteriori advertising obligations?
15.1. The award notice.
15.2. The provisions of Article 133.
16. What are the cases in which award-winning authorities may be referred to as procuring entities subject to specific procurement rules?
16.1. What are the activities of network operators?
16.1.1. Activities subject to the electricity, gas or heat code.
16.1.2. Activities subject to the water code.
16.1.3. Activities related to the operation of a geographic area to prospect or extract oil, gas, coal or other solid fuels.
16.1.4. 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.
16.1.5. Activities subject to the transport code.
16.1.6. Postal activities.
16.2. What are the exceptions to the application of the public procurement code?
16.3. What are the main procedural differences between procuring entities and procuring authorities?
16.3.1. The applicable thresholds.
16.3.2. The choice of procedures.
16.3.3. The qualification system of economic operators.
16.3.4. The variants.
16.3.5. Offers containing products from third countries.
16.3.6. Timeliness.
16.3.7. Minimum number of candidates admitted.
16.3.8. Markets for master's work.
16.3.9. Master Agreement and purchase order.
16.3.10. Advertising procedure.
16.4. What are the procedures for exiting the code field?
A N N E X E S
Annex I. - The texts to be heard.
Annex II. - Coordinates of advisory services and public procurement information sites.
The public purchaser will know whether to apply the public procurement code when he has answered the following three questions:
Who must apply the public procurement code?
Is the contract considered a public market?
What are the exceptions provided by the code?
1. Who must apply the public procurement code?
1.1. Public persons submitted
the Public Procurement Code
The Public Procurement Code is divided into two parts: a first part comprising the provisions applicable to procuring authorities, and a second part comprising the provisions applicable to procuring entities.
Community concepts of "adjudicative power" and "adjudicative entity" are now introduced into French law.
The procurement authorities subject to the Code are: the State and its public institutions other than those of an industrial and commercial nature, the territorial authorities and all their local public institutions.
The procuring entities are procuring powers that operate a network operator activity. These entities are subject to specific rules established by Part II of the Public Procurement Code (the specific rules applicable to them are subject to particular development in Part 5 of this manual).
It should be noted that public health institutions and social or medico-social public institutions, although subject to the rules applicable to local authorities in their capacity as local public institutions, benefit from a derogatory regime. Indeed, the code expressly provides for a number of specific provisions to be subject to the rules applicable to the State. Similarly, inter-hospital unions are subject to the same regime as health institutions through the Public Health Code.
1.2. Organizations not subject to the public procurement code
Private individuals do not, in principle, fall within the scope of the public procurement code. However, if a private person is an agent of a public person subject to the code, it must comply with the provisions of the contract code for the contracts that have been issued pursuant to that mandate.
Similarly, private legal persons who participate in a group of orders must, for their purchases made under the grouping, apply the rules set out in the code.
In addition, there are public or private individuals who, although not subject to the public procurement code, are subject to competition obligations imposed by community law. These bodies are governed by Order No. 2005-649 of 6 June 2005 on contracts passed by certain public or private persons not subject to the public procurement code and its implementing decrees (1).
It should be emphasized that the markets passed by all public institutions of an administrative character having in their statute a research mission, among which public institutions of a scientific, cultural and professional character, public institutions of scientific cooperation and public institutions of a scientific and technological character, for the purchase of supplies, services and works for the conduct of their research activities are governed by Order No. 2005-649 of 6 June 2005 on the contracts passed by certain public or private persons 30 of Program Law No. 2006-450 of 18 April 2006 for Research).
2. Is the contract considered a public market?
When the buyer finds that it is subject to the code, he must verify that the contract he wishes to conclude is a public market.
Section 1 of the code provides a precise definition of the public market.
2.1. A public market is a contract
Public markets are contracts devoting the will agreement between two persons with legal personality, which excludes any unilateral decision.
2.2. A public market is concluded on an expensive basis
The expensive character expresses the idea of a burden on the buyer. In most cases, the contract will result in the payment of a sum of money. However, in the absence of such a payment, the expensive character can also result from a withdrawal by the public purchaser of a possibility of a recipe related to the execution of the market.
These include, for example, the authorization given to the contractor to operate the advertising panels installed on the public domain, by paying for the advertising revenues therein, or the authorization given to the contractor to sell the sand or gravel from a watercourse of which he conducted the curage.
On the other hand, benefits that the public person obtains on a free basis can never be qualified as public procurement.
2.3. A public market can be passed
with public or private persons
A contract is signed between two distinct persons with each legal personality. No text or principle prohibits, because of its nature, a public entity from applying for the award of a public market. However, the procedure for the intervention of the candidate public must not distort the conditions under which competition between this public entity and other companies is exercised in order to respect the principle of equal access to public order. The public who bids must be able to justify, if any, that the proposed price has been determined by taking into account all of the direct and indirect costs involved in the training of the award of the benefit subject to the contract, and that it has not benefited, in determining the proposed price, from an advantage arising out of the resources or means allocated to it under its public service mission (2).
2.4. A public market is a contract that must meet the needs of the administration in terms of supplies, services and works
The purpose of the market is a fundamental element that must be precisely defined in order to meet a need of the public.
2.4.1. Public markets differ from subsidies.
The contracts that the administration frequently signs with different partners, including associations, are not necessarily public markets. It is the answer to a need expressed by the administration that makes it possible to differentiate public markets from the conventions that accompany, for example, certain granting of subsidies.
The public market differs from the grant, which constitutes a financial contribution of the public person to an operation justified by the general interest but initiated and conducted by a third party. This will be a grant if the initiative of the project comes from the recipient organization and if no direct counterparties are expected by the public person of the payment of the financial contribution. Otherwise, it will be a public market. The concept of initiative involves not only the impulse of the project but also its design and definition.
2.4.2. Public procurement is also distinguished from public service delegations.
Act No. 2001-1168 of 11 December 2001 referred to as "MURCEF Law" introduced in Act No. 93-122 of 29 January 1993 as "Spin Law" a definition of the delegation of public service: "a contract by which a legal person of public law entrusts the management of a public service whose responsibility it has to a public or private delegate, whose remuneration is substantially related to the result of the operation of the service. The delegate may be responsible for building works or acquiring goods necessary for service. "
The fundamental difference between a public market and a public service delegation is the method of remuneration. For a public market, payment is complete and immediate and made by the public purchaser. For a public service delegation, remuneration is drawn mainly from the operation of the service.
2.4.3. Public markets are also distinguished from public-private partnerships.
Partnership contracts are governed by Order No. 2004-559 dated June 17, 2004 and its application (3). Due to its duration, its terms of pay and the conditions of its operation, the partnership contract is not a public market within the meaning of the public procurement code.
This contract is defined as an administrative contract by which a procuring authority "trusts to a third party, for a period determined on the basis of the depreciation of the investments or the financing arrangements selected, a global mission relating to the financing of immaterial investments, works or equipment required for the public service, the construction or processing of works or equipment, as well as to their maintenance, maintenance, operation or "
The partnership agreement authorizes compensation to the contracting partner for the duration of the contract, which is not related to the operation of the contract. Compensation can be linked to performance objectives assigned to the contractor. The investment costs are thus released to the benefit of the procuring power.
Under the contract, the procuring authority acquires ownership of the property.
The contracting partner of the public ensures the mastery of the work to be carried out.
2.4.4. Public markets differ from a set of other legal instruments under public order and allowing the procuring authorities to involve private partners in the realization of works.
- The administrative emphyteotic lease for only local authorities and public health institutions:
Section L. 1311-2 of the General Code of Territorial Authorities defines the administrative emphyteotic lease as allowing a territorial community that owns a real estate to rent it to a third party that can build a public domain work and then lease it to the landowner community. This legal instrument can be used by a community:
- either for the purpose of carrying out a general interest operation under its jurisdiction;
- either for the purpose of carrying out a public service mission on its own behalf;
- or, until 31 December 2007, for the purpose of carrying out a general interest operation related to the needs of justice, police or national gendarmerie, or a public health institution, or a health cooperation structure with public morality (cf. art. L. 6148-3 of the Public Health Code);
- or, until December 31, 2010, for the purpose of carrying out a general interest operation related to the needs of a departmental fire and rescue service.
Article L. 6148-2 of the Public Health Code states that the administrative emphyteotic lease allows a public health institution or a health cooperation structure with a public moral personality, owner of a property, to rent it:
- either for the purpose of carrying out, on behalf of the establishment or structure, a mission to the exercise of the public service to which they are charged;
- either for the purpose of carrying out a general interest operation under their jurisdiction;
- either for the purpose of carrying out an operation that meets the needs of another public health institution with which they conduct cooperative action.
The contracting partner of the public ensures the mastery of the work to be carried out.
- The lease agreements reserved solely for State services:
Articles L. 2122-6 and L. 2122-9 of the Code of Public Property define the authorization of temporary occupation of the public domain as a legal instrument that allows the State to grant a third party a real right on its domain so that the latter constructs a work that it exploits or leases to the State.
At the end of the occupation title, the existing works, constructions and facilities of a real estate character on the occupied state dependency must be demolished, either by the holder of the authorization or at his own expense, unless their maintenance in the state was expressly provided by the occupation title or that the competent authority does not give up in whole or part of their demolition.
The works, constructions and facilities of a real estate character whose retention after the title of occupation has been accepted become fully and free of charge the property of the State.
The contracting partner of the public ensures the mastery of the work to be carried out.
Inland Security Guidance Act (IASA) of 29 August 2002, codified in section L. 2122-15 of the Public Property Code (LOA/AOT):
This legal instrument allows the State to conclude with the holder of a temporary authorization to occupy the public domain a lease bearing on buildings to be built by the contractor and with an option allowing the State to acquire, in the long term, the edified works.
This arrangement is intended for the purposes of justice, national police, gendarmerie, armies or services of the Ministry of Defence. The contracting partner of the public ensures the mastery of the work to be carried out.
- The sale in the future state of completion (VEFA):
The sale in the future state of completion is a contract by which a third person constructs a work of which he resells a part to the administration as the construction of this work (cf. art. 1601-3 of the Civil Code). The seller retains the powers of master of the work until the work is received.
The administrative judge supervised the use of VEFA. When the following four conditions are cumulatively met, the procuring authority is not authorized to use the AEV:
(a) The object of the operation is the construction of a building itself;
(b) The construction is on behalf of the procuring power;
(c) The building is entirely intended to become the property of the procuring power;
(d) The building was designed according to the specific needs of the procuring power.
The judge considers, in these cases, that the public person remains a master of the work within the meaning of Act No. 85-704 of 12 July 1985, referred to as "MOP Law", and is required to enter a public market.
- Global special contracts for state services and public health institutions or health cooperation structures with public morality:
The special global contracts allow the state or public health institutions and health cooperation structures with public morality to entrust to the same provider a global mission from construction to maintenance and maintenance of the built works.
These contracts cannot be referred to as a "public market" within the meaning of French law as they allow for a delayed and comprehensive payment of all benefits by the procuring power. Thus, in limited areas of activity, the public works business markets banned in 2001 by the Public Procurement Code. However, to the extent that these contracts are intended to be a market that enters into the definition of public procurement within the meaning of community law, they have been voluntarily subject to the rules set out in the Public Procurement Code.
The special global contracts cover the following areas:
(a) The buildings assigned to the national police, the national gendarmerie, the armies or the services of the Ministry of Defence;
(b) The infrastructure necessary to establish communication and information systems that meet the needs of the Department of Interior services;
(c) The buildings assigned to the fire brigade in Paris;
(d) The buildings assigned by the State to the formation of personnel involved in civil defence and security missions (cf. art. 3 amended from Act No. 2002-1094 of 29 August 2002 on guidance and programming for internal security: LOPSI);
(e) Prisons (cf. art. 3 of Act No. 2002-1138 of 9 September 2002 on guidance and programming for justice: LOPJI);
(f) Detention centres and waiting areas (cf. art. 52 of Act No. 2003-1119 of 26 November 2003 amending Ordinance No. 45-2658 of 2 November 1945 on the conditions of entry and residence of foreigners in France);
(g) Buildings or equipment for the exercise of the duties of the public health institution or the health cooperation structure with public morality (art. L. 6148-7 du code de la santé publique).
2.5. Special case of contracts
Mandate contracts entered into free of charge are not, by definition, public contracts.
On the other hand, a paid mandate contract is a public market that does not benefit from any derogatory regime (4). When they wish to enter into a term contract with a third party, public persons are required to comply with the advertising and competition obligations set out in the Public Procurement Code. They must, on a case-by-case basis, verify whether the terms of reference contract relate to a performance subject to the public procurement code and analyze whether it is a service delivery or even a contract of work, in order to know the obligations to be met during the procurement.
3. What are the exceptions to the application
Public procurement code?
However, a contract that meets the terms of definition of a public market may enter one of the categories of exclusions provided for in section 3.
Section 3 lists a number of assumptions that the code does not apply.
These exclusions are provided by European directives and jurisprudence and most are justified because of the specificity of the situations involved.
Some of them deserve a comment.
3.1. Integrated services called "in house" (art. 3 [1°])
This exclusion, which concerns contracts of supplies, works or services between two distinct legal entities but one of which may be viewed as the administrative extension of the other, is a result of the Community jurisprudence that sets out two conditions to recognize the existence of an integrated benefit:
- the control carried out by the public on the contractor is the same as that exercised on its own services; a simple guardianship relationship is not enough;
- the contractor works mainly for the applicant public; the share of activities carried out for the benefit of others must remain marginal.
The contracting partner in this situation must then apply all the rules of the public procurement code to meet its own needs.
It should be noted that the minority participation of a private enterprise in the capital of a society in which the procuring power also participates excludes in any event that this procuring power can exercise similar control over that society to that exercised on its own services. Accordingly, where a public purchaser wishes to enter into a costly contract within the scope of the code, the contracting party, including SEMs, must compete in the capital of which he holds an interest with one or more private companies (5).
3.2. The granting of an exclusive right (art. 3 [2°])
This exclusion concerns only service markets.
The exclusive right may be defined as the right of a contracting party to be entrusted by a procuring authority directly, i.e. without advertising and/or competition, a service delivery.
This right is the result of a legislative or regulatory text that assigns such an exclusive right, defines the mission of general interest entrusted to the contractor and specifies the obligations imposed on him.
This text must be prior to the contract.
The conditions for accepting the validity of an exclusive right (or special rights where there are several procuring powers subject to the code or order of 6 June 2005) are as follows.
The exclusive right must be necessary and proportionate to the exercise of a general economic mission entrusted to the contractor:
- in the event of the general economic services (SIEG), i.e. "market service activities fulfilling missions of general interest and therefore submitted by Member States to specific obligations of public service" (6) (e.g., services of transport, energy or communication networks);
- when the exclusive right can be viewed as justified if, in his absence, his beneficiary is not in a position to carry out the particular mission that was assigned to him.
In other cases, derogation from the application of the rules of the EC Treaty of Free Competition, Free Service Delivery, Freedom of Establishment and Free Movement of Goods must be justified by a compelling necessity of general interest and provided that the restrictions to these rules are appropriate to ensure the objective they are intended and that they do not go beyond what is necessary to achieve it.
In accordance with Article 86 of the Treaty establishing the European Community, the exclusive right can only be granted to a specified body for the performance of a general economic service mission justifying the exclusion or restriction of competition in the services markets in question. In addition, if it creates a dominant position in the market of services in question within the meaning of Article 82 of the EC Treaty and Article L. 420-2 of the Commercial Code, it shall not cause the beneficiary to abuse it. Finally, the content, duration and limitations of the service must be precisely defined.
3.3. Programme contracts
(art. 3 [6°])
This exclusion concerns only service markets, not supply and work markets.
It applies only to programs that truly focus on research and development projects, without direct industrial extensions. Simple study markets do not fall into this category.
Contracts for research and development programs are excluded from the scope of the code as long as the procuring authority only partially funds the program or as long as it does not acquire the exclusive ownership of the program results. These two concepts are not cumulative to result in the exclusion of the code application field.
Thus, only the contract in which the procuring authority is required to acquire the full ownership of the results of the research program and to ensure its full funding is considered a public market subject to the code.
3.4. Contracts that require secrecy or whose execution must be accompanied by special security measures or for which the protection of the essential interests of the State requires it (art. 3 [7°])
Article 3 contains an exemption for contracts that require secrecy or whose execution must be accompanied by special security measures or for which the protection of the essential interests of the State requires it. This provision makes it possible to move without advertising or competition from markets that are declared secret or whose execution must be accompanied by special security measures. This is notably the case of certain benefits acquired to prevent terrorist or bio-terrorist actions, and more generally of suppliers who, as a result of their benefits, have access to sensitive information or areas whose disclosure may affect the security and safety of the State and its scientific and economic potential.
In the area of national defence, such contracts may include specific justifications:
- contracts for the preparation and execution of the missions of the armed forces engaged in external operations and meeting critical needs for the safety, effectiveness of forces and compliance with international commitments;
- contracts for the benefit of the armed forces, when they have received an ad hoc mission of national interest from the Government, to meet urgent needs for the preparation or execution of this mission;
- contracts for the acquisition of images and services related to operational communications, observation and intelligence;
- contracts to implement urgent humanitarian assistance.
3.5. Specific exclusions (art. 3-15)
The exclusion referred to in item 15 of section 3 is related to the outgoing mechanism of the sector directive and concerns network operator activities that cease to be subject to the rules of the public procurement code because they enter a competitive field (e.g. telecommunications).
This article is directly derived from community law and is clarified by the heading 40 of Directive 2004/17: "This directive should not apply to markets to allow the exercise of an activity (...) if, in the Member State in which this activity is carried out, it is directly exposed to competition in markets where access is not limited. It is therefore necessary to introduce a procedure applicable to all sectors covered by this directive to take into account the effects of an openness to competition, whether current or future. »
The code is limited to repeating the principle of this procedure. Indeed, its progress is the responsibility of the European Commission, which adopted a decision on its modalities of application (Commission decision of 7 January 2005 on the modalities for the application of the procedure provided for in Article 30 of Directive 2004/17/EC, published in the Official Journal of the European Union of 11 January 2005). Only the French State can submit such a request.
4. How should the buyer determine its needs?
4.1. Why do you need to identify the needs?
The choice of the procedure to be implemented is based on the amount and characteristics of the benefits to be performed. This is why it is essential to proceed upstream to a precise definition of needs. From this essential pre-phase depends, on the one hand, on the choice of procedure and, on the other, on the subsequent success of the market.
A good needs assessment is not simply a legal requirement but is first of all an imperative condition for the purchase to be carried out in the best economic conditions.
The requirements of the procuring authority include not only the requirements associated with its own operation (e.g., purchases of office supplies, computers for its agents, insurance benefits for its premises, etc.), but also the entire scope of the needs associated with its general interest activity and which lead to the provision of services to third parties (e.g. school transport markets).
To be effective, the expression of needs is based on four main considerations:
- analysis of the functional needs of services on the basis of, for example, consumer status;
- the in-depth knowledge of supplier markets, participation in trade shows, technical documentation;
- the distinction, including within the same category of goods or equipment, between standard purchases and specific purchases;
- and finally, when possible, the adoption of a global cost approach taking into account not only the purchase price, but also the operating and maintenance costs that will be associated with the use of the property or equipment purchased. As such, the procuring power can take into account sustainable development concerns.
Sometimes the buyer may have difficulties in determining his need. When uncertainty concerns both the objectives and the means to achieve them, the buyer can use either the definition contract procedure or the competitive dialogue procedure.
When uncertainty concerns the amount or extent of the needs to be met, but also in order to plan in time the needs to be met or to spread the purchase over time, the purchaser may make use of the purchaser's purchaser's purchaser's purchaser's purchaser's purchaser's purchaser's purchaser's purchaser's purchaser's purchase order, sliced market or framework agreements.
4.2. Exceptions limited to the precise definition of needs
The definition of needs may be more or less accurate depending on the readability of the buyer. Indeed, it can happen that a procuring power is in the objective impossibility of defining the means to meet its needs. When, for these reasons, it uses the competitive dialogue procedure, it is not required to draft a specification of the requirements. It is in order to meet the specificity of this procedure that Article 11 of the Public Procurement Code states that: "For contracts passed according to formalised procedures, the act of engagement and, where applicable, the specifications are the constituent parts thereof. In contrast, in the other procedures, the writing upstream of a notebook of charges is an obligation.
4.3. The obligation to determine its needs
by reference to technical specifications
The procuring power must define its needs using technical specifications. These specifications are technical requirements that clearly describe the technical characteristics of a product, work or service.
They allow the procuring authority to define the requirements it considers necessary, particularly in terms of performance to be achieved.
The procuring power has two options:
- in the first case, the procuring authority refers to standards or other pre-established documents approved by bodies recognized in particular by professional bodies in consultation with national or community public authorities. This is European technical approval, a common technical specification or a technical repository (the definition of these terms is provided by the application of Article 6 of the Public Procurement Code);
- in the second case, the procuring power expresses the technical specifications in terms of performance to be achieved or functional requirements. For example, for a firefighter apparel market, the procuring power may require, under technical specifications, a fabric resistant to a very high degree of heat or resistant to a particular water pressure, with reinforcements, a minimum weight.
The procuring power has the option of mixing the two categories of technical specifications. Thus, for the same product, service or type of work, it may refer to standards for certain characteristics and to performance or requirements for other characteristics.
The procuring authority may also determine technical specifications taking into account environmental characteristics, including by referring to ecolabels.
In no case shall the technical specifications affect the principle of equality of candidates. This is why they cannot mention a specific brand, patent, type, origin or production that would promote or deviate certain products or productions.
4.4. From the interest of variants
A good definition of needs does not exclude leaving a share of initiative to candidates. For this purpose, the procuring authority must indicate in the notice of public appeal to competition or in the documents of the consultation whether or not it authorizes the variants. The consultation documents should mention the minimum requirements that variants meet and the terms and conditions of their presentation.
In the event that the procuring authority does not indicate anything, candidates are not allowed to submit variants.
Even if they are not explicitly provided by the public procurement code, it is also possible for a procuring authority to request options. Options are complementary benefits that must be limited so as not to distort the game of competition.
The distinction between the variant and the option does not relate to the substance, it is based on the person who originates in this form of offer. This is an option if it is a request from the procuring authority and a variant when it is a proposal from the candidate.
4.5. Who defines needs?
Contrary to the January 7, 2004, code that maintained the concept of a person responsible for the market, the new public procurement code does not wish to interfere with the organisation and operation rules specific to each procuring power. Indeed, none of the rules set out in the guidelines deals with issues relating to the modalities of attribution of competence between the various bodies responsible for the procurement of public procurement.
It follows that the terms and conditions for the designation of persons responsible for the implementation of market procedures, the competences vested in them or the regime of delegations of authority or signature are exclusively within their organic or statutory texts, or are left, in the absence of such texts, to the free choice of the procuring power.
In any case, it is up to each procuring authority to indicate, in terms of its procurement policy, how much the different needs that are its own must be appreciated. This assessment must be carried out in strict compliance with the objectives and competition rules enacted by the code.
In particular, it is expressly prohibited any excessive cutting that would have the effect of subtracting markets from competition obligations.
Once this preliminary work has been completed, the procuring authority shall designate, where appropriate, persons responsible for the implementation of market procedures.
These people then have an exclusively administrative and functional role, with the appreciation of the level of needs being done before and outside them by the procuring power. Their role is to choose the appropriate procurement procedure with regard to the procurement thresholds and to carry out the procedure chosen under their responsibility.
For example, for the deconcentrated services of the State, it will be for the prefect, who has jurisdiction to go through the markets, to determine the level to which the supplies, services and work of the deconcentrated services under his authority must be taken into account. Contracting persons may then be designated for the implementation of procedures to meet these requirements.
Similarly to the central departments of the State, the decree of July 27, 2005 is the title of competence of the minister, responsible for defining precisely the level to which the needs of his ministry must be taken into account and delegating his signature to the agents of his administration. The regime of the delegation established by this decree will apply automatically, replacing the provisions of Article 20 of the 2004 Code without the need to do so to produce a formal act (an order) bearing delegation.
This redefinition of the conditions for assessing the needs and the rules for the designation of persons responsible for the implementation of market procedures has the advantage of allowing the procuring powers, governed by the existing regulations for delegation of signature or jurisdiction, to act in a simplified and secure legal framework.
5. Buy alone or bundled?
Public buyers can, depending on their economic expectations, make the choice either to buy alone, or to group or to use a purchasing power plant. This choice must be guided by the ongoing concern of lowering prices and management costs.
5.1. As part of a command group?
The groupings, without a moral personality, allow public buyers to coordinate and consolidate their purchases to, for example, achieve economies of scale. They also allow several contractors to regroup to choose the same provider(s). They may concern all types of markets but are particularly suitable for the field of current supplies.
It should be emphasized that the State being a single procuring authority, its services may, without the need to use the control grouping mechanism, coordinate their purchases, as described in paragraph 5.3. However, they can always be inspired by the grouping mechanisms to organize their coordination.
The code provides several degrees, more or less broad, of members' participation in a command group.
In addition to the case where each member of the group signs its market, the group coordinator may, at the end of the contracting party selection operations, sign, notify the contract and execute it on behalf of all members of the group.
But it can also only sign and notify the market, and let the members of the group run the market, each for what concerns it. This latter provision is particularly suitable for groupings with a very large number of members.
In order for a grouping to be effective, it is necessary that before moving the market its members undertake to respect a number of commitments, including a minimum purchase volume.
In order to assess the amount of the needs of a grouping between the State and one or more territorial authorities, and thus to define the procedure for the procurement to be implemented, reference should be made to the thresholds applicable to the markets of the State, that is, the most restrictive thresholds.
5.2. By using a shopping centre?
The purchaser may also decide not to carry out the procurement procedures themselves but to use a purchasing power plant. The direct use of a purchasing power plant is, in fact, authorized by the code on the condition, however, that the purchasing power plant itself respects the advertising and competition rules imposed by the code or by the order of June 6, 2005.
It may be entrusted with several types of missions, ranging from the provision of supplies and services to the issuance of framework agreements or contracts for procuring powers.
A procuring authority subject to the rules of the public procurement code for all of its purchases, provided that it specifies it in its market or in the terms of the framework agreement, may decide to establish itself as a procurement centre and to place markets on behalf of other public bodies.
5.3. Order coordination?
The order coordination mechanism allows a procuring authority to coordinate procurement of its services. Coordination is possible for both the conclusion of a public market and the conclusion of a framework agreement.
The modalities for the implementation of this coordination mechanism are left to the discretion of the procuring authorities. A centralizing service may, for example, be designated to enter into the market where each service can either enter into its own market or issue purchase orders in the terms fixed by the market past by the centralizing service.
As in the order groupings formula, there is a need to anticipate the needs assessment and, in particular, the scope of the services concerned prior to the launch of the market procedure. Indeed, once it is launched, it is impossible to integrate changes that would challenge the initial balance of the market.
6. What form of market adopt?
6.1. The choice of market devolution mode
Article 10 of the code sets out as a principle that all markets will be passed into separate lots, if they can be divided into coherent sets, unless the allotment presents a technical, economic or financial disadvantage.
The procuring powers are therefore strongly encouraged to resort to all their markets. Devolution as a global market now becomes the exception.
The philosophy behind this measure is to allow the largest number of companies, regardless of their size, to access public order.
6.1.1. Leasing and the single market.
Leasing is now established in principle to create real competition between companies, regardless of their size.
Thus, the field of competition is extended to competitive companies but are not necessarily capable of achieving the entire market, especially small and medium-sized enterprises (SMEs).
Leasing is particularly appropriate when the importance of the work, supplies or services to be carried out may exceed the technical or financial capabilities of a single company, each lot, of less importance, that can be carried out by small or medium enterprises. The same is true in the event that a single company cannot hold extremely short execution times only by adopting a pace of work requiring additional expenses that strike the cost of the delivery, or to ensure the security of the supplies.
The choice between a single market and a separate batch market must be made, on a case-by-case basis, depending on the economic, financial or technical interests of each procuring power.
Whatever happens, the procuring power remains free to set the number of lots in its public market.
However, the procuring power can free itself from the principle of allotment when its implementation presents a number of disadvantages.
The procuring power can use the global market when:
- the allotment presents a technical disadvantage related to the consistency of the benefit involved. For example, when the procuring power is not able to provide itself with organizational, steering and coordination missions. A commune that does not have the human or technical means to ensure the coordination of the work may use a global market;
- allegiance presents an economic or financial disadvantage. For example, the overall cost of a benefit can be higher by using an alloti market, if the delivery costs are included in the price of the one-market benefit, or if the fact of alloting leads the purchaser to appeal to a work coordinator.
Devolution as a global market does not prohibit the procuring authority from identifying benefits in a separate way (in the form of technical lots).
The terms and conditions of recourse to allotment are facilitated by the introduction of a provision allowing buyers to sign only one act of engagement when several lots are assigned to the same bidder.
In the event that the purchaser uses a global market with the purpose of both the construction and operation or maintenance of a work, it will have to show separately their costs in order to distinguish between the expenditures related to the investment of those related to maintenance and operation, without making it possible to compensate each other. Overvalued operating expenses is a deferred payment prohibited by the public procurement code.
6.1.2. Small lots.
Additional flexibility is provided by Article 27 III, which allows for contracting in a suitable manner for lots less than EUR 80,000 HT, provided that the cumulative amount of these lots does not exceed 20% of the value of the entire market. For work contracts greater than the threshold of EUR 5,270,000 HT, the value of these "small lots" is increased to EUR 1,000 000 HT with the maintenance of the condition not exceeding 20% of the total market.
This measure allows small and medium-sized enterprises to be combined with complex operations, which can exceed the technical and financial capabilities of a single company.
6.2. Partialized contract procedures
and Timely Market Planning
If the public purchaser is unable, at the time of the procurement, to accurately define all the terms and conditions of its needs (quantity, frequency, nature), it may use specific procedures in two stages, distinguishing a pre-selection phase of suppliers in the award phase of contracts or orders.
These contracts have passed, depending on their characteristics, according to the various procedures provided by the code.
In this category, it is necessary to distinguish between the purchase orders, the master agreements, or the stock markets.
6.2.1. The purchase orders.
If the public purchaser is not in a position to know precisely in advance the quantities to be ordered or if it has reason to doubt the possibility of realizing in a single time the whole of a program, it may use a purchase order deal.
A purchase order is a successively executed market with one or more economic operators. It can now be concluded without a maximum or a minimum, which gives the public purchaser more freedom that is no longer required to guarantee from the outset a minimum of expenses. A buyer can therefore make repetitive purchases by organizing a single full competition procedure for potential suppliers.
The purchase orders, even if the market has been concluded with several economic operators, are then issued without negotiation or competition from the holders. They are distributed among these licensees on a market-fixed basis. Order vouchers determine the amount of benefits or products requested. They may specify the characteristics of these benefits provided that they do not substantially alter the initial market provisions.
However, when the procuring authority has a visibility on the desired quantities, it is in the best interest to enter into purchase orders with a minimum and maximum, allowing to obtain economically more advantageous offers.
For occasional low-value needs (less than 1% of the total market amount and less than EUR 10,000 HT), the procuring authority may be directed to a provider other than the market holder.
In order to promote the coordination of procurement between a central government and its deconcentrated services, it is possible to conclude a procurement contract that will be delivered at the central level and executed at the deconcentrated level (issue of purchase orders).
6.2.2. The framework agreement.
The framework agreement is essential to separate the procedure itself from the supplier(s) of the awarding of actual orders or contracts. This is more of a planning and optimization instrument of purchase than a way of deferring orders.
The framework agreement is a device that allows to select a number of providers that will be subsequently competed when the need arises.
A framework agreement is a contract with one or more economic operators. This contract lays the essential foundations for the procurement of future contracts based on its foundation and therefore grants a unique or shared exclusivity to the contractors thus selected for a specified period of time. Subsequent contracts based on this agreement may supplement its provisions without substantially changing it.
The framework agreement whose amount is less than the thresholds of formalized procedures may be passed according to an appropriate procedure. For framework agreements passed in accordance with this procedure, the procuring authority is free to set the deadline for receipt of tenders according to the characteristics of its contract.
Above the thresholds of formalized procedures, the framework agreement may be passed after tendering or, if the conditions provided by the code are met, after a negotiated procedure or a competitive dialogue.
As a general rule, a framework agreement is concluded by one or more procuring powers with several economic operators.
Economic operators are selected according to the criteria determined to choose the most economically profitable indicative offers.
The terms of the agreement may be specified or refined during the competition of the holders of the framework agreement.
A framework agreement may also be concluded by one or more procuring powers with a single economic operator.
Successive contracts awarded to the incumbent economic operator of the framework agreement can then be concluded either when the need arises, or according to a particular period of time provided by the framework agreement (e.g. when the available stock of products subject to the framework agreement becomes equal to or less than a pre-established level). The amount to be paid is then defined, after competition, in each contract awarded on the basis of the framework agreement.
In the event of a batch division on different products or services, and if it is carried out in the event of the need arises, this competition is limited to the holders of the lots for which a need is found. If it is carried out according to a defined periodicity, the competition of the batch holders shall cover all lots.
In addition to planning, framework agreements have multiple advantages:
- a buyer may make repetitive purchases by organizing a single full competition procedure for potential suppliers;
- multiple buyers with similar needs may group to designate one or more suppliers at the end of a single procedure while retaining their autonomy when awarding and monitoring the execution of the markets itself. Buyers can thus significantly reduce the cost of their purchase procedures, obtain more interesting prices thanks to the volume effect while leaving user services a significant margin of freedom in the management of supplies;
- the conclusion of a framework agreement without a minimum also allows by its flexibility a strong reactivity. A procuring power may, in particular, enter into a market or a purchase order within a very short period of time when needs are random but their nature is known (reparations, materials to cope with natural disasters...);
- it does not necessarily require the setting of a maximum and minimum, which can allow for the selection of a sufficient number of suppliers to optimally respond to the various requests;
- it can better take into account technological developments affecting the products or services concerned;
- it induces healthy economic behaviour to the extent that it relies on a competition at each appearance of need.
For territorial authorities, the award of subsequent contracts to the framework agreement, the amount of which is equal to or greater than formalized procedures, falls within the jurisdiction of the territorial assembly.
6.2.3. The case of energy purchases.
The code provides a special device for the realization of non-stockable energy purchases.
These purchases may result in the procurement of a contract or framework agreement. Regardless of the payment method chosen, buyers are allowed not to indicate, a priori, the precise amount of energy provided to them. This amount will then be found at the end of the market or framework agreement.
6.2.4. Conditional contracts.
In a conditional-size market, the public purchaser is only engaged on the firm slice, not on conditional bands. But the assessment must be made, for the assessment of the procedural and advertising thresholds, by adding the estimated amounts of all the slices.
6.3. Dynamic Acquisition System (ADS)
The dynamic acquisition system is a fully electronic procurement process for the purchase of current supplies. It is time-limited and open for the duration of its time to economic operators meeting the selection criteria and having submitted indicative offers in accordance with the consultation documents.
The specificity of the dynamic acquisition system lies in the ability offered to any economic operator who, on the one hand, meets the selection criteria and, on the other hand, presents an indicative offer in accordance with the documents of the consultation, to be admitted to the system for the duration of its existence.
The definition of needs must be accurate and prior.
It is important to note that the procuring authority must publish a simplified market notice in the Official Journal of the European Union and must wait fifteen days from the date of sending of this notice before proceeding to competition.
The procuring power, according to the expression of its needs, then invites the operators admitted to the system to present their final offers.
7. How do we know if we're over a threshold?
There are two types of thresholds:
- thresholds, which are exclusively national, beyond which terms and conditions, including advertising, apply to markets passed in a suitable procedure;
- thresholds, set on community thresholds, which trigger the application of formalized procedures.
The thresholds are set in section 26 of the code.
The thresholds for formalized procedures are amended every two years by decree. Indeed, every two years, the thresholds of European directives on public procurement are revised by the European Commission in order to meet the international commitments of the Union under the plurilateral Agreement on Public Procurement of the World Trade Organization (Decision 94/800/EC of 22 December 1994, JOCE No. L 336/1 of 23 December 1994).
This agreement provides for thresholds expressed in special drawing rights (SDRs). Since the SDR is a basket of currencies (euro, U.S. dollar, yen), the thresholds of the directives expressed in euros must therefore be revised regularly to take into account the change in the currency price.
The procuring authority must verify whether the thresholds set out in section 26 that trigger the application of formalized procedures defined in Title III of the code are met. It is recalled that no need should be cremated or improperly split in order to avoid the rules of the public procurement code.
To the extent that the procuring authority must adopt, for the satisfaction of its needs so assessed, a formalized procedure, it has the ability either to enter a single market or, if it deems it useful, to pass as many markets as it considers necessary. For example, the completion of work whose estimated amount is higher than the procedural thresholds must result in a formalized procedure but may indifferently be the subject of a contract or several markets. In the latter case, each of these markets must comply with the formalized procedure even if they are individually below the corresponding thresholds.
The needs assessment is based on the following concepts:
7.1. For the labour markets:
the concepts of work and operations
The labour market, which is defined in Article 1 of the Code, is characterized by the fact that the procuring power is the owner of the contract, that is, the legal person for which the work is built.
To assess the amount of a labour market, the overall value of the work related to the same operation should be taken into account, which may relate to one or more works.
7.1.1. The concept of work operation.
The work operation, within the meaning of the code, is a set of works that, in consideration of their object, technical processes used or their financing cannot be separated and that the workmaster has decided to carry out in the same period of time and in a given geographic area.
An operation can cover several works, such as the renovation of the roofs of the schools of the same commune or the realization of sidewalks in different areas of the city.
An operation may also relate to certain works carried out on the same work of a different nature programmed at the same time, for example, in the area of rehabilitation.
7.1.2. The concept of work.
The term "work" is defined by the "public procurement" directives as the " result of a set of building or civil engineering works intended to perform an economic or technical function by itself."
Thus, the work is the result obtained at the completion of construction, restructuring or rehabilitation of a building or civil engineering work. This is concretely the construction obtained after the work of a building or a civil engineering project such as a rainwater collector or a grid of electricity.
7.2. For supplies and services markets:
the homogeneous character
In order to estimate in a sincere and reasonable manner the total value of supplies or services considered to be homogeneous, either because of their own characteristics or because they constitute a functional unit, section 27 of the code allows to compare the amount of requirements to the procedural thresholds of the markets.
In no case shall the choice between these two formulas be made to allow the contract to be removed from the procedural rules established by the code. It is recommended that buyers make this choice when determining the nature and extent of their services and supplies needs.
The homogeneity of needs is a concept that may vary from buyer to buyer, and it is up to it to appreciate according to the characteristics of the activities that are specific to it and the coherence of its action. For example, a pair of scissors can be similar for a central administration to office supplies, as well as surgical equipment for hospital facilities. To assess the homogeneity of their needs according to the specific characteristics of the delivery, buyers can develop a specific classification of their purchases according to a typology consistent with their activity.
When it comes to satisfying a need that contributes to the realization of the same project, the buyer can refer to the functional unit. This concept, which needs to be assessed on a case-by-case basis on the basis of expected benefits, requires a plurality of services or supplies that contribute to the same object. In this case, all the benefits necessary for the development of a project, and being part of a coherent package, are taken into account in a comprehensive manner. If the total amount of this assessment is higher than the formalized procedures thresholds, the purchaser will have to comply. Otherwise, it may use appropriate procedures.
The occurrence of new needs, even though the needs have been assessed in a sincere and reasonable manner, may result, except in the case where an advent is sufficient, at the conclusion of a new market. The procurement procedure for this new market will be determined on the basis of the amount of new needs.
When these needs are the subject of a market whose amount is valued separately, unpredictability, i.e. the new nature of the need, must be real: it cannot allow a factual splitting of the market.
8. How to communicate its needs
potential candidates?
8.1. Why do you need to advertise?
Advertising is a fundamental principle of public order. Advertising has a dual utility. It must allow free access to the public order of all interested providers; it is also the guarantee of genuine competition.
It must be considered that a market has been passed in satisfactory conditions under the transparency requirement if the advertising means used have actually allowed potential providers to be informed and have resulted in a variety of offers sufficient to guarantee a real competition.
It is therefore up to the purchaser to determine the most relevant advertising terms with respect to the object and the amount of the contract involved. However, it is specified that advertising does not mean systematically publication, especially for smaller markets.
In this regard, the code leaves a great margin of manoeuvre to buyers; It is at this stage that their professionalism and their accountability make every sense.
However, from a threshold of EUR 90,000 HT, the publication of a notice of public tender for competition is mandatory subject to the exceptions mentioned in point 8.4. In addition, and with respect to advertising materials, all additional means listed under 8.3 below may be used.
8.2. How to advertise?
The effectiveness of advertising is an essential component of market regularity, the terms and conditions of advertising must be chosen accordingly. This is why special attention must be paid to the choice of the materials used.
The terms and conditions of advertising are specified in Article 40; therefore, it is necessary to strictly comply with it.
Press notices may not, on the one hand, contain more information than those contained in the notices addressed to the Office of Official Publications of the European Union, nor, on the other, intervene before sending to that office.
8.2.1. Below the threshold of EUR 4,000 HT.
Below the threshold of EUR 4,000 HT, markets can be switched without advertising. Indeed, in the case of purchases of a very small amount, an advertisement can become an element of increase and unnecessary expenditure.
8.2.2. Between the thresholds of EUR 4,000 HT and EUR 90,000 HT.
The question of the correct level of advertising is mainly for purchases between EUR 4,000 HT and EUR 90,000 HT since, below EUR 4,000 HT, no advertising measures are imposed by the code, and above EUR 90,000 HT, the code imposes specific advertising terms.
Between EUR 4,000 HT and EUR 90,000 HT, it is important to keep in mind the idea of proportionality of advertising measures to be implemented. It is clear that the higher the amounts, the greater the need for advertising measures. It depends on situations.
The chosen mode of advertising will not only depend on the amount of the market but will also need to be adapted to the object, nature, complexity, degree of competition between the companies concerned and the urgency of the need. The important thing is that the chosen advertisement guarantees the effectiveness of the purchase, that is, it is able to create the necessary competition.
In addition, for low-value purchases, advertising does not necessarily result in a publication. The key is to ensure sufficient competition between potential providers.
The purchase will be considered in satisfactory conditions under the principles of public order if the means of advertising used allow potential providers, regardless of nationality or border, to be informed of the intention to purchase, manifested by public authorities, and of the content of the purchase, in order to achieve a variety of offers sufficient to guarantee a real competition.
The choice of good advertising must also be guided by the general economic balance of the operation and be related to the object and estimated amount of the market. The investment in advertising should not be a significant element of incremental costs. Thus, when the publication of a detailed advertisement in the written press appears to be too costly in terms of the amount of the purchase, other solutions, such as an advertisement by way of display, on an Internet support, or consultation with several suppliers should be found.
With respect to the display, if it is not always suitable for the organization of an effective competition, it is possible for communities to accustom suppliers to the use of this support, by first informing them of its use through a pre-publication of advertisements, particularly in the community information body and/or in the local written press.
With regard to the use of the internet, buyers can use buyer profiles: the buyer profile of the procuring power is the dematerialized site to which it uses for its purchases. To the extent that a buyer's profile has a strong audience, this means of advertising can be considered as a single means sufficient to the extent that the public community has previously made general information of potential candidates on its intention to publish its notices through this means.
On the other hand, for smaller audience sites, this mode of information should only be considered as a complementary means of advertising that support a press release, even succinct, but that would send for details to the posted ad.
To prove, if necessary, that it has taken any action to create a real competition, the purchaser will be able to produce various supporting documents: the sending of advertisements, posting documents, posting documents or requests for a quotation.
Only the measures taken by the own initiative of the procuring power are considered relevant. The publicity measures taken "without its will" are "without influence on the regularity of the advertising measures it has taken" (7). The emphasis is therefore on the individual responsibility of each procuring power.
8.2.3. Between the threshold of EUR 90,000 HT and community thresholds.
The terms and conditions of advertising are specified in Article 40; therefore, it is necessary to strictly comply with it.
For supplies or services in the amount of EUR 90,000 HT and EUR 135,000 HT for the State or EUR 210 000 HT for the territorial authorities, and for work contracts between EUR 90,000 HT and EUR 5,270,000 HT, the code imposes the obligation to advertise under the following conditions.
Notices of public appeal to competition are obligatoryly published either in the Official Bulletin of Public Procurement (BOAMP) or in a newspaper authorized to receive legal announcements (JAL). The code also invites the purchaser to complete, if necessary, its mandatory advertising by additional advertising in a specialized press body. It is up to the buyer to assess, given the nature and amount of the work, supplies or services involved, the need for such a complementary publication.
The estimated amount of the market, its complexity, its technical characteristics are all criteria that will have to guide the purchaser in the choice of the newspaper or newspapers, especially according to their distribution and readership.
Notices to BOAMP are necessarily sent via teleprocedure. For all categories of markets, buyers will have to use mandatory forms set by order of the Minister responsible for the economy to publish their notices, both in the BOAMP, in a legal announcement journal and in the specialized press.
8.2.4. Above community thresholds.
Above the thresholds of EUR 135 000 HT for the State or EUR 210 000 HT for the territorial authorities for the supply or services markets, and EUR 5,270,000 HT for the labour markets, notices of public tender for competition are published in the Official Bulletin of Public Procurement (BOAMP) and the Official Journal of the European Union (JOUE).
Notices to the JOUE are issued in accordance with the mandatory forms established by Commission Community Regulation (EC) No. 1564/2005 of 7 September 2005 establishing the standard forms for the publication of notices as part of public procurement procedures.
The opinions sent to BOAMP are in accordance with the models fixed by decree of the Minister responsible for the economy and by teleprocedure.
National advertising notices may contain no more information than those addressed to the Official Journal of the European Union (JOUE). The attention of the buyers is drawn to the fact that in the event of a paper transmission of notices of advertisement to the JOUE their content should not exceed 650 words (equivalent to a page of the JOUE), in the absence of which the publication office of the European Union may refuse publication.
It is recalled that, when the procuring authority establishes a notice of public appeal to community competition, it is required to refer to the number of nomenclature of Regulation No. 2195/02/EC relating to common vocabulary for public procurement, says CPV for Common Procurement Vocabulary (8). The use of this nomenclature ensures transparency of information and the opening of European public markets by translating the object of the market by common codes that allow the removal of language barriers.
8.3. Additional advertising
In all cases, in order to meet the obligation of effective advertising, the procuring authority may use, if it appears necessary, additional advertising materials for all its markets such as a publication in the specialized press, the display or the internet.
In practice, complementary advertising allows the public purchaser to receive applications or offers that he would not have, without it, necessarily obtained. Thus, for markets of a high amount, where the cost of a supplementary publication in a press body is not significant compared to the amount of the market, it may be appropriate to seek to maximize competition through additional publications. It goes without a legal obligation, of the economic interest of the buyer.
The specialized press:
Many economic fields are covered by specialized journals which are read by the companies of the sector (cf. buildings and public works; computer equipment, etc.). The publication of a notice in this press is, in addition to mandatory advertisements, a very useful medium to reach a more targeted readership.
The display:
The purchaser can usefully display its procurement projects on the materials reserved for this purpose. This additional information is well suited to small and medium-sized territorial communities.
The internet:
In the same spirit, the published information can be reproduced on the buyer profile of the procuring power (the website of the public buyer or any other suitable portal). This type of support is called, given the development of new information technologies, to be increasingly consulted by candidates for public procurement.
8.4. Very limited exceptions:
articles 28 (fourth paragraph) and 35-II
Title I of the Public Procurement Code sets out the fundamental principles of freedom of access to public order, equal treatment of candidates and transparency of procedures that apply to all markets. These principles find their application in the advertising and competition obligations set by the code.
In some specific cases, the Code does not provide for an obligation to publish a notice of public appeal to competition or to make a competition. It is then the nature of the market that is taken into account and not its threshold. This is the case for markets that can be negotiated without prior advertising or competition listed in section 35-II and markets that are less than EUR 4,000 HT.
In order to preserve public money, however, it is recommended that public buyers, when the economic and competitive environment permits, make an advertisement to allow effective competition.
9. How to compete?
9.1. Why should we compete?
Competing is necessary in that it allows to respect the fundamental principles defined in Article 1 that are freedom of access to public order, equal treatment of candidates and transparency of procedures. Moreover, making competition in the public procurement act first responds to an objective of economic efficiency. In fact, competition is necessary primarily to generate a diversity of offers. It allows to increase the chances of obtaining the most economically advantageous offer and to guarantee good use of public money.
9.2. A fundamental principle
Above the formalized procedural thresholds, the public purchaser is obliged to implement, in addition to the rules of advertising, the principle of competition provided by the code.
These thresholds are set out in section 26:
- for supplies and services markets, to 135,000 HT for the State and 210,000 HT for territorial authorities;
- for construction markets, at 210 000 HT, either for the state or for the territorial authorities.
The code refers to contracts concluded below these thresholds as contracts passed according to an appropriate procedure. These contracts are contracts without prior formalities mentioned in the general code of territorial authorities. They are therefore not subject to the requirement to transmit to the prefect for legality control, given their qualification of contracts passed without prior formalities.
For markets that have been contracted according to an appropriate procedure, the procuring authorities must define themselves competition rules proportionate to the object and amount of the market.
9.3. How to achieve effective competition?
The code requires competition for all markets, subject to the exceptions set out below.
Between the threshold of 4,000 HT and formalized procedural thresholds, it is the responsibility of the buyer and must be adapted according to the market envisaged. Under the threshold of 4,000 HT, the code exempts competition buyers, which means that no formalized bid comparison procedure is required. These small purchases must nevertheless respect the fundamental principles of equality and transparency that govern public order. Respect for these principles is appreciated through the behavior of the public buyer.
Above the procedural thresholds defined in Article 26, this competition is formalized and specified by the code.
The need to respect all the procedural deadlines prescribed by the code should be emphasized. For all markets, these deadlines are always minimal times that the buyer has the ability to increase, on the one hand, for greater legal security and, on the other hand, to allow potential candidates to present an offer. However, the purchaser's use of electronic means offers him the ability in some cases to reduce the deadline for applications and offers. For the record, the deadlines for receiving bids must be extended in the event of a visit to the market execution or on-site consultation of additional documents.
For the markets passed according to a suitable procedure for which the code does not impose anything, the buyer will ensure that there is sufficient time to allow competition to play. A suitable advertisement that would set a time limit for receiving too short offers could be considered inadequate in terms of transparency and equal treatment principles.
Buyers can benefit from a reduction in time either in the event of an emergency that does not result from the fact of the public or in the event of a notice of pre-information.
The lack of knowledge of these rules may result in the nullity of the public market.
9.3.1. Below formalized procedural thresholds.
When the thresholds set out in section 26 of the code are not met, the markets may be passed according to an appropriate procedure.
With the exception of markets less than 4,000 HT for which no competition is required, the fact that some markets can be passed according to a suitable procedure means that they are not subject to any formalized procedures defined by the code but does not mean that they have voluntarily passed.
The buyer is bound to respect the principles set out in Article 1 that are freedom of access to the order, equal treatment, transparency to determine the procedure to be implemented. It is up to the Commission to establish a procedural content to determine that the purchase was made in satisfactory conditions of transparency, taking into account the amount and nature of the benefits involved.
The first principle to bear in mind is that the freedom to define the procedure of his choice does not mean that at any time or another, especially before the judge, is not likely to have to justify the reasons for the choices made. The specificity of the appropriate procedure is precisely the fact that one cannot stop behind the mere respect for a procedure, but that it is appropriate to be able to justify his choices. At each stage of the procedure, at each choice made, the question should be asked: how can I justify the choice in case of challenge?
The second principle stems from the first: to be able to justify choices, it is necessary to retain any document to demonstrate that the choices made correspond to what appears to be the most rational. This is the principle of traceability and transparency. It is recommended that public buyers keep the history of the various steps taken to make the licensee's choice and be able to communicate it.
Of course, the justification for the choices made will be all the more eased as a strict principle of equal treatment between candidates, both within the time frame, in the information provided, in the expression of the needs, in the communication of the possible changes of the needs, in the relations maintained between each candidate, in the criteria of choice...
Finally, it should not be forgotten that it is the quality of pre-information, the dissemination or communication of this information, in short, of the advertising of needs that will make most of the competition conditions.
Armed with these principles, the proper procedure offers many possibilities. It does not prohibit negotiation. Negotiation is indeed a decisive factor in the quality of public procurement, especially since it will be carried out in a transparent manner. The price criterion is often an easy justification of choices. However, it is never prohibited to use other criteria. Many other criteria may indeed seem justified: delivery time, warranty, technical quality... In these cases, it is never prohibited to use other criteria provided that they are able to justify them.
Buyers can already, for the sake of speed and economic efficiency, promote information exchange electronically.
They can thus electronically, under conditions that they determine, make available to the service providers the consultation documents and organize the receipt of applications and offers by the same way.
With regard to the terms and conditions for notification of contracts passed according to an appropriate procedure, this also applies the principle of proportionality.
These are common sense rules that must be imposed. The application of these principles belongs to the buyer. It is clear that the higher the amounts, the higher the requirement for compliance with these principles and the more formalized the procedures must be.
9.3.2. Above formalized procedural thresholds.
Contracts that reach the thresholds set out in section 26 of the code are formalized contracts. The public purchaser must stick to the scrupulous application of the rules set by the code.
9.3.2.1. Supply and service markets.
When the market thresholds for supplies and services reach 135,000 HT for the State and 210,000 HT for the territorial authorities, these markets are in principle switched on tenders.
However, if the conditions are met, it is possible to use the negotiated market (art. 35), the procedure defined by article 30 or the competitive dialogue procedure (art. 36). The Code also provides for the possibility of using specific procedures such as the design-realization procedure (art. 37), the competition procedure (art. 38), the definition contract procedure (art. 73) or the special procedures provided for in articles 68 (communication operations), 71 (Decoration of public constructions) and 74 (Maîtrise d'oeuvre).
9.3.2.2. Labour markets.
Contracts of work have passed through a formalized procedure when they reach the threshold of 20,000 HT, either for the State or territorial authorities.
For work contracts with an amount of between 210 000 HT and 5,270,000 HT, the free choice is left to the public purchaser between the three main categories of formalized procedures. It can thus freely choose:
- either for a call for tenders, with reduced deadlines for receiving applications and offers (arts. 57, 60 and 62);
- either for a negotiated procedure, being specified that the tendering board intervenes in the procedure to assign the market when it comes to the territorial authorities and to give its opinion before the award for the state markets;
- either for the competitive dialogue procedure (item 11.1.3).
On the other hand, once the procedure is chosen, the buyer will have to implement the rules set by the code for the terms and conditions of its conduct.
For labour markets with an amount greater than 5,270,000 TT, contracts are obligatoryly contracted according to the tender procedure, except to meet the terms and conditions of recourse to the negotiated procedure, competitive dialogue or design-realization.
9.4. Special case of framework agreements
and Article 30 service markets
In order to take into account the specificity of the contracts under Article 30, the procuring authorities are allowed to use the appropriate procedure, regardless of the amount of the need to be met, with the exception of the markets below 4,000 HT for which no competition and advertising are mandatory.
No obligation to enter into a tender or other formalized procedures under the Public Procurement Code is therefore not required for such contracts.
On the other hand, these service markets are mandatory for their transfer to the technical specifications and to the sending of an award notice above the threshold of 210 000 HT.
Accordingly, the terms of advertising and competition will be determined by the procuring authority according to the object and characteristics of the market.
This procedure allows for a high level of freedom of organization to public buyers while providing a response to the requirement to provide adequate advertising and competition in accordance with the principles laid down in Article 1 of the Public Procurement Code.
In addition, the jurisprudence has admitted that certain benefits under section 30 may be acquired without prior advertising and even, possibly, without competition, because of their object or situations that meet reasons of general interest (9).
Finally, the contracts for the representation of a public person for the settlement of a dispute, subject to the same provisions as the contracts for other services under section 30, are exempted from the application of title IV of the contract enforcement code.
The market affiliation to any of the categories referred to in sections 29 and 30 shall be verified by reference to the categories of services listed in the annex to Directive 2004/18/EC. This annex refers to the CPV nomenclature (Common Procurement Vocabulary) which provides a unique classification system for all public markets.
These service markets, which fall within the scope of Article 30, are identified in areas as varied as education, qualification and vocational integration services, recreational, cultural and sporting services, social and health services and legal services.
9.5. A few very limited exceptions: cases where the code does not require competition (articles 28, fourth paragraph, and 35-II)
Some markets may, as a result of post-market procurement, be negotiated without prior advertising and without competition, in accordance with the provisions of Article 35-II (see item 11.1.2). In addition, for markets with a value of less than 4,000 HT, the code does not provide an obligation to compete.
10. How to select the candidates?
10.1. What should a nomination file contain?
In order to reduce the composition of applications, some certificates no longer have to be produced by all candidates at the start of the procedure, but only by the only candidate whose offer is selected, prior to the signing of the contract. In particular, these are certificates or certificates proving that the candidate is in good standing under his or her tax and social obligations.
However, the contract can only be awarded if the successful candidate provides the required certificates and certificates.
For newly-created companies, they may produce a certified copy of the deposit receipt of the business formalities centre.
To have access to the public order, the candidate must not be in one of the situations prohibiting him from bidding to a public market (art. 43 of the code).
To the prohibitions to compete under the Public Procurement Code of 7 January 2004 (10), there are additional prohibitions provided for by, on the one hand, section 29 (2°) of Act No. 2005-102 of 11 February 2005 for the equal rights and opportunities, participation and citizenship of persons with disabilities and, on the other hand, articles 8 (11) and 38 (12) of Order No. 2005-649 of 6 June 2005
Article 29 (2°) of Act No. 2005-102 of 11 February 2005 on the equal rights and opportunities, the participation and citizenship of persons with disabilities introduces a new ban to apply to providers who do not meet the employment obligation of workers with disabilities under Article L. 323-1 of the Labour Code. Candidates to a public market must file a certificate on honour, duly dated and signed to establish their situation with respect to this prohibition of bidding.
10.2. What are the modalities for selecting candidates
and the documents and information to be provided?
10.2.1. Does the company have the capacity to execute the market?
The procuring authority must be able to verify the company's ability to meet market obligations if it was to obtain it, or be able to assess the applicant's ability and guarantees to perform the contract in the light of the documents and information provided by the applicant. The list of these documents and information is referred to an order by the Minister responsible for the economy.
The procuring authority may only require information that is related to the subject-matter of the market, to assess their experiences, their professional, technical and financial capacities, and documents relating to the powers of the persons authorized to hire them.
10.2.2. What are the criteria for selecting candidates?
The typology of selection criteria always distinguishes technical, financial and professional guarantees.
It can only be required at minimum levels of guarantees and capacities, which are linked and proportionate to the subject matter of the market. Insufficient guarantees and capacities lead to the elimination of the candidate.
Technical capacity refers to material and human resources and is valued quantitatively and qualitatively. New documents may be requested, such as certificates or certifications intended to prove deliveries or services to, respectively, a procuring authority or a private purchaser, certificates of good performance for the work, a description of the technical equipment, the measures used for supplies and services.
Financial capacities, which can only be of a general nature, tend to determine whether the applicant's financial means are sufficient to complete the market. Now, in order to facilitate the proof of the candidate's financial credibility, in addition to the turnover, the candidate may be asked for an appropriate statement of banks or proof of insurance for occupational risks and balance sheets or extracts from the balance sheets of economic operators for which the publication of the balance sheets is mandatory under the law.
Vocational abilities allow the candidate to verify the qualifications required, i.e., "the proof of a certain level of professional competence". Evidence of the candidate's ability can be provided by any means, including by specific justifications, provided that they do not pose a risk to free competition. Among these special justifications are always certificates of professional qualifications (identifications or certificates issued by professional bodies) and certificates of quality (certificate awarded by a certifying body or attesting to the existence of a quality manual and procedures (13).
The procuring authority must accept any equivalent means of evidence as well as the equivalent certificates of bodies established in other Member States (article 45-II of the CMP) or "any other document considered equivalent" (article 45-III of the CMP). The procuring power specifies how it appreciates them.
With respect to the requested references, they must be in relation to and proportionate to the subject matter of the market: the candidate chooses the ones that seem most appropriate to him. The buyer checks the reality by respecting the secret of business. But now, "the lack of references to the execution of previous markets of the same nature cannot justify the elimination of a candidate," which tends to favour the access of SMEs to public order.
When the procuring authority decides to limit the number of candidates admitted to bid, it must make a selection. The selection criteria for candidates may be identical to the required capacity levels of the candidates, but it is not necessary to resume all the capacity elements of the candidates.
10.2.3. How can SMEs gain access to public order in the selection of applications?
In the first place, insufficiency or lack of references is no longer a sufficient reason to exclude a candidate. This device aims to promote access to new small and medium-sized enterprises in the sphere of public order. The buyer must determine, with respect to all other elements, whether or not the company has the capacity to execute the contract. Other elements may include references from another company (any company that may avail itself of the references and means of another company).
Public buyers will be able to use the professional qualifications of candidates who have little public order reference.
In the second place, a SME can be combined with other candidates who complement its technical, financial and professional capacities and references. It can indeed rely on the means of a third-party company if, for example, it is part of the same group of companies, if it has a subcontracting agreement or if it belongs to the same grouping. Legal ties between companies are now taken into account to allow a company to invoke the capabilities of other companies either in the event of subcontracting or in the event of co-contracting when it associates its application with those of other companies by creating a "scheduled company group" (CMP arts. 45-III and 51). It then refers to external means.
Thirdly, under the limited procedures, the procuring authority may set a minimum number of SMEs that will be allowed to offer.
10.3. What happens if the candidate's file is incomplete?
At the stage of the selection of applications, buyers may request candidates to regulate the contents of the first envelope in the event of an incomplete or incomplete production of a piece claimed in the application file and thus remain in the competition. The code does not require the procuring authority to ask bidders the missing documents, but if it makes this request, it is for the benefit of all candidates.
10.4. What documents to be produced by the candidate
to which is it envisaged to assign the market?
In order to prove that it has fulfilled its tax and social obligations, the successful candidate at the end of the selection process is required to produce copies of the certificates and certificates issued by the competent authorities required by the Minister for the Economy (or a copy of the annual statement of certificates received: DC 7), within the time limit set by the awarding authority, for failing which the contract is not notified to the applicant.
As long as the amount of the contract is equal to or greater than 3,000 euros, the successful candidate must also provide the documents referred to in article R. 324-4 of the Labour Code (see concealed work) if established in France or those of article R. 324-7 if established abroad.
This new device was introduced into the Labour Code by section 71 of Act No. 2004-810 of 13 August 2004 on health insurance (amending article L. 324-14 of the Labour Code) and Decree No. 2005-1334 of 27 October 2005 on concealed work (amending articles R. 324-4 and R. 324-7 of the Labour Code). From now on, the principal is required to exercise, in addition to a pre-order check prior to the issuance of any order, a check, every six months, until the performance of the contract, the contracting party's compliance with its reporting obligations to social welfare agencies and tax administration.
10.5. How to dematerialize formalized public markets?
The "dematerialization of formalized public procurement" means the use of the electronic channel for exchanges that occur in the public procurement process and enter the scope of Article 56 of the Public Procurement Code.
10.5.1. When transmitting electronically, do you need to sign electronically, how?
Under section 48 of the Public Procurement Code, a candidate may transmit his or her offer electronically, i.e. via the internet network, provided that the undertaking is electronically signed by an authorized person. It is not necessary to confuse electronic transmission with the transmission of an electronic medium (CD-Rom...) by mail, the latter being assimilated to a paper transmission.
To sign electronically, are required an electronic signature certificate and signature software. However, the interested party does not need to have a signature software if it uses a portal offering this feature.
10.5.2. What is an electronic signature certificate and how to get one?
An electronic signature certificate is an electronic document that is intended to authenticate the identity of the signatory person (identity card), the integrity of the documents exchanged (protection against any alteration) and the assurance of non-repudiation (inability to deny its signature).
Among all categories of electronic signature certificates marketed by specialized companies called "electronic certification services providers", the Minister responsible for State reform refers to those that meet a cross-sectoral security repository by meeting minimum technical requirements. The list of categories of electronic signature certificates referred to is published on the website of the Minister for State Reform at the following address: "http://www. entreprises.minefi.gouv.fr/certificats/". This list is scalable, it is actually updated as references go.
Any e-certification service provider may recognize, by the Minister for State Reform, the conformity of its class of electronic signature certificates to the cross-sectoral security repository. To this end, he asks him to register them on the list of the above-mentioned certificate categories.
In accordance with the provisions of the Order of Application of Article 48 of the Public Procurement Code, to electronically sign its application and commitment, the company freely selects a category of electronic signature certificates referred to above. The certificate is nominal, it is issued to the persons authorized to hire the legal person.
This order simplifies the signature system to the extent that it guarantees to companies that all categories of registered electronic signature certificates are accepted by all procuring authorities (State, territorial authorities, public institutions). In addition, such certificates may also be used for other teleservices (TV @, telec@rte grise, social declarations...).
10.5.3. What is a backup copy and what role does it have?
A new device to facilitate the dematerialization of public procurement procedures is the backup copy.
The backup copy is a copy of applications and offers to replace, in the event of anomaly, applications and offers electronically transmitted to the procuring authority. This concept of backup copy is therefore different from that of data archiving.
At the same time as e-mailing, economic operators can send the procuring authority a backup copy on electronic physical support (CD-Rom, DVD-Rom, USB key...) or on paper. This copy is transmitted under sealed fold and necessarily includes the mention: "back backup copy". The documents on this support must be marked with electronic signature (for documents whose signature is mandatory). This backup copy may, for example, be opened in the event of a computer system failure (which supports dematerialization) or when a malicious computer program (virus) is detected in the electronic document transmitted by the economic operator.
10.5.4. What about the markets passed according to the appropriate procedure (MAPA)?
Contracts passed according to the appropriate procedure (MAPA) are not subject to the regime of Article 56 of the Public Procurement Code. However, the procuring authority may opt for dematerialization and must therefore ensure the confidentiality and security of transactions on a non-discriminatory computer network. It is therefore up to the procuring authority to determine the most appropriate conditions and terms to dematerialize all or part of the stages of the life of a market, using, where appropriate, the rules set out in Article 56 of the Public Procurement Code and its enforcement order.
10.5.5. Is the dematerialization of public markets measured?
As part of the information provided by the procuring authority for the public procurement census, information will be collected on the dematerialization of public procurement. These statistics will allow public buyers to appreciate the development of dematerialization and to be relevant to other buyers.
10.5.6. Where can I find more information on public procurement dematerialization?
Public order actors can find all useful information in the legal vade-mecum of the dematerialisation of public procurements that can be downloaded on the website http://www.minefi.gouv.fr/ in the "public procurement" section.
11. When can we negotiate?
Whenever authorized by the code, the use of dialogue and negotiation, after advertising and competition, can be usefully considered. It allows for a better purchase in compliance with the rules of transparency.
11.1. What assumptions can we negotiate?
11.1.1. Below the formalized market thresholds.
Where their amount is less than the thresholds set out in Article 26, the markets may be passed according to a competition procedure adapted by the procuring power according to the nature and extent of the needs. The use of negotiation with several potential suppliers is possible for all these markets, without any condition or circumstance or amount of the market.
11.1.2. Above the formalized market thresholds.
11.1.2.1. Contract categories negotiated.
Above the community thresholds, the call for tenders is the common law procedure for public order. The negotiated market can therefore be used only in a number of cases limited by the public procurement code.
There are two categories of negotiated contracts and limited cases under section 74:
(a) Contracts negotiated after prior advertising and competition (art. 35-I):
In particular, it is possible to make contracts under this procedure for which only irregular or unacceptable offers have been proposed. However, the initial market conditions must not be substantially modified.
An irregular offer is an offer that meets the needs of the procuring authority but is incomplete or that does not meet the requirements of the consultation documents (e.g., where a procuring authority has not indicated in the consultation documents that it wanted variants, if a candidate presents one, its offer is irregular).
An unacceptable offer is an offer that meets the needs of the procuring power but does not comply with a requirement set by national legislation or regulations. It may therefore be rules relating to the subcontracting, taxation, environmental protection, protection provisions and conditions of work, or the course of the procurement procedure (e.g., Law No. 2005-102 of 11 February 2005 for the equal rights and opportunities, participation and citizenship of persons with disabilities and its Decree of application No. 2006-555 of 17 May 2006 on public housing Therefore, an offer that would not meet these requirements must be considered unacceptable.
(b) Contracts negotiated without prior advertising and without competition (art. 35-II):
In particular, contracts may be contracted for which only inappropriate bids have been filed.
The concept of inappropriate offer includes cases where the offer does not correspond to the requirements of the procuring power indicated in the consultation documents. In this case, the presentation of such an offer is assimilable to the absence of tenders, which is why recourse to the negotiated procedure without competition is possible as long as the buyer does not change the subject matter of its market.
For example, there is a market for which the procuring power buys desktop computers and receives offers for laptops or a market for which the procuring power needs small-capacity light transport aircraft and receives offers for large-capacity transport aircraft.
Markets for dealing with compelling emergencies can also benefit from the negotiated procurement process without prior advertising or competition.
When a master's contract meets the terms and conditions of recourse to the negotiated procedure, Article 74 provides a specific negotiated procedure adapted to the master's control.
11.1.2.2. What is the role of the tender board in the negotiated procedure?
The tender board does not intervene at the stage of the launch of the negotiated procedure.
On the other hand, it is obligatory at the end of the proceedings, except for the specific provisions of Article 74:
- for local authorities, it is the call for tenders that attributes the market to a proposal for the classification of offers made by the procuring power;
- for the State and for public health institutions and social or medico-social public institutions, the market is awarded after notice of the tender board.
In the event of an imperious emergency, the market may be awarded without prior meeting of the tender board.
11.1.3. The competitive dialogue procedure.
Competitive dialogue is a solution adapted to the conclusion of complex markets for which the procuring power cannot define, in advance, the technical means to meet its needs or for which it is not able to establish legal or financial assembly. It is not an element of procedural acceleration but of improving the definition of needs.
It may happen that procuring powers are in an objective impossibility to define the means to meet their needs or to assess what the market can offer in terms of technical, financial or legal solutions. This situation may arise in particular for the realization of certain computer projects or networks or certain communication projects, or more generally for projects for which the buyer does not have sufficient visibility.
In addition to assisting in the definition of needs, the competitive dialogue presents, in relation to the call for tenders, the advantage of giving a more comprehensive and comparative view of the technical, financial or legal solutions that the market can offer, since the offers will not, from the beginning, be enclosed in technical specifications too specific.
The competitive dialogue may also be used for work contracts with an estimated amount of between EUR 210 000 HT and EUR 5,270,000 HT, in the event that the conditions for the use of section 10 of the MOP Act are met. In this case, the public purchaser may use this procedure freely without having to justify that it is not capable of mastering the financial or legal environment of its market.
To the extent that the use of open or restricted procedures would not permit the award of such markets, competitive dialogue is a flexible procedure that safeguards both competition between economic operators and the need for public persons to discuss with each candidate all aspects of the market. It provides public buyers with much wider opportunities to engage with market candidates in order to improve the quality and innovative nature of the proposals made to them.
In a competitive dialogue procedure, candidates will develop their offers on the basis of a functional program, i.e. a document in which the buyer describes in practical terms his expectations and the results he wants to achieve.
Once the needs are defined, the buyer sends for publication a notice of public appeal to competition.
The minimum number of candidates in the notice may not be less than three, unless the number of candidates is not sufficient.
Depending on its experience and the technologies it masters, each candidate will be able to propose the solution that seems best to him to meet the needs described in this document, but the offers received are not, at this stage, offers to take or leave such. They will be able to be improved and completed through the dialogue that each candidate will have with the procuring power. On the one hand, a candidate may need additional information on the site (e.g., the characteristics of the electrical installation), on the other hand, the procuring authority may ask each candidate for explanations of the content of his proposal and the amendments that would better benefit from the potential of this proposal.
The dialogue can take place in as many successive phases necessary for the buyer to define his need. Candidates may be asked to amend the successive proposals from the dialogue.
At the end of each phase, the public purchaser may deviate the proposals from candidates who are unsuitable for their need based on the criteria set out in the notice of public competitive appeal or in the regulation of the consultation. He then informed the candidate(s) concerned and continued the dialogue with the remaining candidates.
Throughout the dialogue phase, the procuring authority may not disclose to other candidates proposed solutions or confidential information provided by a candidate in the course of the discussion without the consent of the candidate.
When the public purchaser considers that the discussion has come to an end, he informs the candidates of the end of the dialogue and asks them for their final offer. At this point, he does not have to write a notebook. As soon as the offers have been filed, the most advantageous offer is chosen according to the selection criteria announced at the beginning of the procedure. When there are still several candidates, those candidates whose offer has not been selected must be informed. Upon expiry of a 10-day period from this information, the market may be signed.
To the extent that the development of proposals by the candidates for the dialogue can result in significant costs, it is the interest of the buyers to provide for the payment of premiums, to the level of effort requested, in order to generate real competition and encourage the largest number of economic operators to participate in this type of procedure.
The procuring authority may, if indicated in the notice of contract, set a maximum number of candidates admitted to dialogue. If the number of applications is higher than this number, the nominations are selected after a ranking taking into account the technical and financial guarantees and capacities, as well as the professional references of the candidates. The minimum number of candidates in the notice may not be less than three, unless the number of candidates is not sufficient.
11.2. What are the advantages of negotiation?
The effective purchase act is characterized by the search for an adequate supply of the seller to the needs of the buyer. The negotiation allows to adapt the offers on demand. At the end of the negotiations, the public purchaser will have to determine the offer with the best value for money, i.e. the best offer that could be made at that time depending on the economic and technical capabilities of the companies.
If this procedure does not allow it to change the main characteristics of the market such as the subject matter of the market or the criteria for selection of applications and offers, it leaves the public purchaser the opportunity to freely determine by negotiation the contents of the benefits and the adaptation of the price to the benefits ultimately selected while in an open or limited tender procedure, the specifications are fixed unilaterally and intangible before the launch of the tender.
Therefore, even if the procuring power cannot change the market conditions as defined for the commencement of the proceedings, it has, with the negotiated market, an important margin of manoeuvre.
It is thus possible to negotiate on:
- the price: how to pay less a benefit by acting for example on the cost of acquisition but also on the cost of storage or processing, how to act on the price of accessories, options, spare parts, guarantees, maintenance, insurance, transportation, etc.;
- the quantity: verification of the required quantity, frequency of orders, structure of discounts granted, etc.;
- quality: verification of the good quality estimate, sufficient or, on the contrary, overestimated, with regard to needs, impact on the price if the requested quality level is changed more or less;
- the deadline: impact on the price of the requirements in terms of time, the share of the transport and various formalities, etc.;
- guarantees of good market execution (penalty, termination...).
11.3. What are the constraints of negotiation?
In terms of negotiated markets, the public purchaser must face two constraints. The first is to provide candidates with equal treatment throughout the procedure. The second constraint, corollary of the first, is the transparency of the procedure that must be carried out in accordance with the industrial and commercial secrecy surrounding the know-how of the candidates.
In order to properly respond to this dual constraint, the buyer will have to pay particular attention to the traceability of the exchanges with each candidate and to maintain them at the same level of information.
12. How to choose the supply economically
The most advantageous?
Prior to any call to competition, the buyer must be in the most favourable economic and qualitative conditions:
- to best define its need, to refine its knowledge of the industry, to avoid unnecessary burdens on the cost of the procedures and the costs of the case by unjustified requirements in order to create optimum competition;
- know and adapt its procedure to price training mechanisms by choosing the right time and selecting the form of prices (closed, up-to-date, revisable) guaranteeing the best economy of its purchases throughout the market.
The rule of choice of the "best-looking" rather than the "less-saying" is affirmed. This rule results in the fact that the "price criterion" is only one criterion among the other possible criteria of choice set out in section 53.
The most advantageous offer is not necessarily assimilable at the lowest price, which of course should not lead the buyer to exaggerately reduce the importance of the price criterion in the analysis of offers. It must also be able to appreciate the overall performance of the market and pay particular attention to the quality of the services provided, as well as to the respect, by both suppliers and users, of the terms and conditions of execution of the market.
Buyers will need to be careful to detect abnormally low offers. An offer can be described as abnormally low if its price does not correspond to an economic reality. However, the purchaser cannot reject offers whose price seems abnormally low without having requested, in writing, details of the composition of the offer and without having verified this composition taking into account the justifications provided. The rejection of the offer on the ground that it is abnormally low must, in all cases, be motivated. Only true market knowledge can protect against this risk.
For the only procurement of supplies passed through formalized procedures, the purchaser may use the reverse electronic auction mechanism. It then operates the selection of the most economically advantageous offer through an automatic bid classification system built on the lowest price criterion and criteria illustrating mandatoryly quantifiable elements of its needs.
12.1. What are the criteria on which the public purchaser will rely to choose the most economically advantageous offer?
The offers must meet the needs defined by the procuring authority, whose specifications are the formalized translation. Indeed, the offer must be the exact answer to the needs as expressed in the terms of reference or in the documents of the consultation.
The buyer, in order to choose the best offer, can only be based on the reputation of a particular company or on the memory of a past experience for a previously executed market. It must clearly distinguish, on the one hand, the criteria for the selection of applications that allow to evaluate the professional, technical and financial capacities of the candidates and, on the other, the criteria of attribution that allow in a second time to choose the offers.
The search for the most economically advantageous offer is an obligation for the public buyer founded:
- either on a comparison of the offers given the choice criteria defined according to the subject matter of the market freely weighted, by the buyer. These criteria must allow to compare offers that best meet the requirements of the buyer;
- either on a comparison of the prices requested to the different candidates to retain the offer with the lowest amount. The code does not impose that the price holds a prominent place in relation to the other criteria; However, the purchaser can rely on this only criterion if the subject matter of its market justifies it, for purchases of common supplies, for example.
The attention of the public purchaser is drawn to the obligation and interest of the weighting of the criteria, as published upstream in the notice of advertisement or in the documents of the consultation. It is only when the procuring authority considers it possible to demonstrate that weighting is not possible, particularly because of the complexity of the market, that it indicates the criteria in descending order of importance.
Contrary to the hierarchy where the different criteria are analyzed independently of each other, the weighting allows better consideration of all the criteria chosen, balanced, with each other. Each of the criteria is affected by an encrypted weighting factor, the most economically advantageous offer is assessed in general, with respect to all the criteria that constitute it. The analysis of offers is in fact refined, favouring the choice of the "best saying" offer.
The criteria chosen must be the translation of the buyer's need.
In addition, the weighting of the criteria ensures better transparency in the analysis of the offers so that each company can accurately know the appreciation that will be made on each item of its offer.
It is recalled that criteria other than those listed in section 53 may be taken into account, if justified by the object of the market or its conditions of execution.
The criteria must be objective, operational and non-discriminatory, that is, they must be linked to the object of the contract to avoid unnecessary constraints.
If they have to take into account the cost of delivery or supply, it is equally necessary for buyers not to neglect the costs caused by the purchase operation, either because of the increase in maintenance or operating expenses for the procuring power, or in terms of savings resulting from technological advances or innovation. Thus, an investment in equipment designed with energy control or using renewable energy, if it costs more to purchase, is likely to be more cost-effective than standard equipment.
Buyers will need to ensure that a purchase made for economy is not proven to be more expensive. That is why, among the criteria for choosing the most economically advantageous supply on which the procuring power can be based, is the overall cost of use or profitability.
Once the criteria become known to potential candidates for the award of the market, it is no longer possible to modify the list, either by addition or by subtraction, or by changing the weighting or classification. Similarly, the clarifications or explanations that, as part of a call for tenders, may be requested on the content of the offer may not alter the criteria or modify the order or weighting of the offer.
The purchaser may also require in the consultation documents the supply of samples, their number shall be proportionate to the objective of making the best choice and compatible with the required technical specification level of the product.
To the extent that these requests involve a significant investment of candidates, buyers must provide for the payment of premiums to the required effort. The payment of these premiums allows for real competition and encourage the largest number of economic operators to participate in the market.
12.2. How can we integrate concerns
environmental in public procurement?
Through its articles 5, 6, 14, 45, 50 and 53, the code allows the procuring authority to take into account environmental requirements in public procurement in accordance with the general principles of public order.
Article 5 on the definition of needs requires the procuring authority to consider sustainable development concerns. This can be defined as a development that meets the needs of the present without compromising the ability of future generations to respond to their needs. Thus, for this first stage of public procurement, it is the opportunity for the procuring authority to question the possibilities of integrating requirements in terms of environment, working conditions and overall cost of purchasing.
Environmental concerns can also be integrated into the procurement process at different stages: during the procurement process and at the time of its execution.
Indeed, Article 45 on the nomination of applications allows public buyers to examine the know-how of candidates in the field of environmental protection through the appreciation of their technical capabilities.
Section 53 allows public buyers to weigh the environmental criterion against all other criteria of choice of offer. However, this criterion must be linked to the subject-matter of the market or to the conditions of execution, expressly referred to in the notice of contract or the regulation of the consultation, and comply with the principles laid down in section 1 of the code. As with other criteria, this criterion should not be formulated in such a way as to give discretion to the public purchaser when choosing the best offer.
The possibility of presenting variants (art. 50) is another way of integrating environmental protection at the technical specifications stage without the procuring power necessarily having to specify its requirements in a precise manner. Thus, the procuring authority may specify that it is willing to host offers that meet certain more ecological alternatives, such as the content of hazardous substances.
In addition, for the performance of a public market, buyers may, in accordance with the provisions of section 14, provide for in the notice of public appeal to competition or in the regulation of the consultation of environmental enforcement conditions. Nor should these conditions have a discriminatory effect. It is here to impose environmental obligations that must be met by the market owner. For example, the following conditions can be found: delivery/package in bulk rather than in small packaging, recovery or reuse of packagings, delivery of goods in reusable containers, collection and recycling of waste produced.
Finally, section 6 on technical specifications defines environmental requirements in the consultation documents. In this context, the procuring authority may refer to the ecolabels attributed by independent bodies. Ecolabels are declarations of conformity of services certified to pre-established criteria of use and ecological quality that take into account the life cycle and environmental impacts of products and that are established by the public authorities in consultation with interested parties such as distributors and industry, consumer and environmental associations.
These tools allow public buyers to set themselves the level of environmental requirement they want to achieve through their markets. They cover the entire field of public purchase without restriction of amount or object.
12.3. Can we address suitable companies
or to work aid institutions and services?
Section 15 of the code allows public buyers to book certain markets or lots of the same market to suitable companies or to work-assisted institutions and services. In this case, the execution of these markets or lots must be carried out mainly by persons with disabilities. The notice of advertisement must mention the use of this option.
This provision does not exempt buyers from arranging, among these only agencies, a procurement procedure, which will be based on the thresholds set out in section 26 and will respect the terms and conditions of advertising provided for in section 40.
13. How to inform candidates of rejection
their application or offer?
When the choice for applications or offers has been made, the purchaser must inform candidates, for contracts and framework agreements passed in accordance with one of the formalized procedures, in accordance with the provisions of Article 80:
- rejection of their application or offer. However, it will have to wait until the successful candidate has provided the tax and social certificates referred to in section 46 to ensure the final award of the contract. In fact, in the event that rejection decisions are notified prior to this audit, bidders would be issued from their commitments and the purchaser could not appeal, in the event of the deficiency of the candidate ranked first, to the following of the list;
- or his decision to give up the market.
The requirement for information of candidates is the result of legislative and jurisprudential principles that open the right to an evicted candidate to file an appeal against the award decision. The Code provides for an automatic obligation to inform candidates of the rejection of their application or offer, being specified, and this mention is important, that a ten-day period must have elapsed between the time the candidates have been duly informed and the date of signature of the market (art. 80).
The Code also provides for a case where a rejected candidate requests in writing to the procuring authority the reasons for the rejection of his or her application and the justification for the choice made (art. 83). It is required to respond within 15 days of receipt of the written request.
However, it is recommended, as an element of transparency that can avoid many litigations, that buyers organize meetings in order to orally explain to candidates the reasons that led to their eviction.
In the case of appropriate procurement, formalities relating to the procedure are generally available depending on the market and, in particular, its amount and purpose. This rule applies to the entire procurement procedure. As a result, it is recommended to provide, also for these markets, as mentioned in community case law, a reasonable period of time between the information of candidates who have been ousted from the rejection of their offer and the signing of the market in order to allow a candidate who would irregularly consider themselves to formulate a remedy prior to the conclusion of the market. However, this period is determined by the buyer according to the market characteristics, in the first place where the amount.
14. How to contribute to good execution
public procurement?
Only the public accountant of the procuring authority is competent to pay the benefits of a public market (cf. art. 12 of the Code). The fourth part of the code lists various measures facilitating the financing of economic operators while ensuring the protection of the financial interests of the procuring powers (e.g., art. 92-100).
14.1. Direct payment of the subcontractor
The use by the contractor of other companies to perform certain benefits, which it cannot or does not want to provide itself, promotes access to the public order of specialized companies and SMEs.
The conditions under which the contractor may use one or more subcontractors, their acceptance and approval of their terms and conditions of payment and the terms and conditions for payment of their benefits are detailed in sections 112 to 117 of the Code.
It is important to remember that:
- subcontracting can only be used for labour markets, service markets and industrial markets (art. 112);
- the choice of subcontractor may be made by the licensee at the time of offer, proposal or after the conclusion of the contract (art. 112);
- subcontracting cannot be total (arts. 112 and 113);
- the acceptance of the subcontractor and the approval of its terms and conditions of payment must be pronounced before the execution of work paid by the payment (art. 114);
- there is no contractual relationship between the contractor and the contractor. Only the holder of the contract is bound by the contractual obligation: he is responsible for all the benefits performed under the contract, by himself and by the subcontractors (art. 113);
- the first-rate subcontractor is entitled to direct payment as long as the conditions of acceptance and approval are met and the amount of its receivable is at least 600 euros (Articles 115 to 117).
Subcontractors can now be settled more quickly thanks to the simplification of the payment procedure. The subcontractor must send his request for payment to the market owner and to the procuring authority or to the person designated by him in the market.
The licensee shall have a period of 15 days to give its agreement or notify the subcontractor and the procuring authority or the person designated by it in the market. The procuring authority shall make the payment of the subcontractor within the period provided for in Article 98.
This period is short from the date of receipt of the licensee's agreement or the expiry of the 15-day period previously mentioned if the licensee has not notified any agreement or refusal to the procuring authority.
14.2. Payment of advances to public procurement holders
The award of advances aims to facilitate the execution of contracts and ensure equal access to markets between companies with sufficient cash to start the delivery of benefits and those that do not have it.
This is particularly true of small and medium-sized enterprises and the majority of associations that work in economic sectors that may be applied to the rules of the public procurement code.
With respect to the provisions governing the advance under section 87, the amount from which the advance is obligatoryly granted to the holder or subcontractor of a contract is EUR 50,000 HT. The amount of the advance is set at 5% of the initial amount, including all taxes, the market, the purchase order or the firming slice. The market may provide that the advance paid exceeds these 5%, but not exceeds 30% of these amounts. However, the advance can be increased to a maximum of 60% if the benefiting company (owner or subcontractor) is a first-demand guarantee.
The terms and the pace of advance repayment are provided in the market. Reimbursement of the advance must be completed when the amount of benefits carried out by the company that has benefited from it reaches 80% of the amount of the benefits entrusted to it (arts. 88 to 90).
14.3. Payments to public contract holders
Unlike advances, deposits are paid for benefits realized during the performance of the market: the deposit pays a service done. The periodicity of payment of deposits is not more than 3 months; in certain cases provided for in section 91, it may be reduced to 1 month.
14.4. The supervision of financial guarantees
required by public procurement
Public procurement may provide for, at the expense of the holder, a security deduction that cannot exceed 5 per cent of the initial amount increased if applicable in the amount of the claimants (art. 101). The deduction may be replaced, at the discretion of the holder, by a guarantee at first request or, if the procuring power does not oppose it, by a personal and solidarity bond (art. 102).
From now on, the holder may, for the entire duration of the market, substitute a first-demand guarantee or, if the procuring power does not oppose it, a personal and solidarity bond to the retention of the guarantee. This is a flexibility to allow businesses to have a greater flexibility to manage their market. Thus, a market holder may, for example, upon receipt of the work, provide a "paper" deposit valid until the end of the warranty period and recover the warranty retention.
The first-time guarantee or personal and solidarity bond is constituted for the total amount of the contract, including the amendments. Amounts deducted from the warranty deduction shall be paid to the holder after the substitution guarantee is made.
14.5. The obligation for the procuring power
to meet an overall payment period
Section 98 recalls that payments of public procurement benefits must be made within a maximum of 45 days, except for exceptions listed in the same section. The modalities for the implementation of the overall time limit for the payment of public procurement and the calculation of the moratorium interest, sanctioning its non-compliance, are detailed by Decree No. 2002-232 of 21 February 2002 (OJ of 22 February 2002) and by the general circular of application of 13 March 2002 (OJ of 6 April 2002).
The formula for calculating moratorium interests is as follows:
late paid amount tax incl. x nb days exceed x
nb days overtaking
late payment tax incl. x
x rate
365
Additional moratoria interests are due when the mandate of moratorium interests did not intervene on or before the 30th day after the date of payment of the principal. Their calculation formula is:
amount of initial IM x nb days delay on IM x rate
nb days late on IM
initial IM amount x
x rate
365
Specific deadlines provided by the Commercial Code apply within the framework of a legislative framework totally independent of that provided for by Decree No. 2002-232.
14.6. Refinancing opportunities through transfers
or pledges arising from public procurement
The licensee and any subcontractor paid directly may assign or swim to credit institutions, for example, their receivable under the conditions set out in sections 106 to 110 of the Public Procurement Code.
To this end, the procuring authority shall give the holder and any subcontractor paid directly either a copy of the original of the market, the avender or the special subcontracting act indicating that the exhibit is issued as a single copy or a certificate of thesesibility in accordance with a model defined by order of the Minister responsible for the economy.
This device is intended to prevent the same receivable from being disposed of several times or that a company yields another debt. It is therefore particularly important that, in order for this device to function properly, the procuring authority shall carry out a follow-up of each single copy or certificate of thesesibility issued under the contract when the respective share of the undertakings (titular, subcontractors) is changed during the contract.
14.7. The possibilities of modifying the initial contract
complementarities and markets
The amendment is the act by which the parties to a contract agree to amend or supplement one or more of its clauses (art. 118). This amendment may not have the purpose or effect of replacing the original contract with another contract, either because its economy would be upset, or because its object would not be the same. The only exception to this rule is the unforeseen technical hardships encountered during the performance of the contract, i.e., obstacles not attributable to the parties and constituting unexpected and exceptional difficulties. In practice, it should be considered that an increase from 15% to 20% or more of a market price is likely to be considered by the administrative judge as disrupting the contract economy.
When the economy and subject-matter of a market are not challenged, it is possible, if necessary, to continue the performance of the benefits beyond the amount provided by the market. However, this situation requires the conclusion of an advent or the decision to continue, whether market prices are flat or unitary. In fact, the estimated value of a unit price market is the same as the amount of a flat price market: the advent or the decision to proceed is then essential even if, alone, the quantities are affected and not the unit prices themselves.
The amendment resulting from an Avenor may also relate to the commitments of the parties to the contract: benefits to be performed, execution schedule or financial regulation of the contract.
The Avenor is also intended to govern changes that may affect the contracting public person (e.g., voluntary sale of the market, merger of municipalities or public establishments).
Similarly, changes affecting the person of the market holder must in some cases result in the passing of an avenor. Examples include: the death of the contractor, the contribution of the contractor to a company or to an GIE, the disappearance of the incumbent company by merging or scission-absorption leading to the creation of a new company, the transfer of assets or the transfer of assets to a third party.
In these hypotheses, the opinion of the Council of State of 8 June 2000 clarified that the sale of the contract should only take place with the prior consent of the public community. Also, after appreciating the professional and financial guarantees that the assignee retaking the contract may bring, in order to ensure the successful completion of the contract, the contracting public may authorize the assignment. If the assignment appears to it in such a way as to challenge the essential elements relating to the choice of the original owner of the contract, or to substantially alter the economy of that contract, the public community is required to refuse its authorization to assign.
On the other hand, an advent is not necessary in the following cases: resumption of the contract by the judicial administrator when the company is subject to a collective procedure, change not affecting the legal form of the company but its social reason or domicile, change in the structure of the company not leading to the creation of a new legal entity (e.g., the transformation of a LRS into LS).
It should be recalled that any proposed amendments to a procurement of supplies, works or services resulting in an increase in the overall market value of more than 5% must be submitted for advice to the tender board and that the deliberative assembly that decides on the proposed amendments is previously informed of this notice (Article 8 of Act No. 95-127 of 8 February 1995). These provisions apply to all markets regardless of their amount.
The Aven must be distinguished from the complementary markets negotiated without prior advertising and competition (Art. 35-II [4° and 5°] of the Code) which are new markets whose cumulative amount must not exceed 50% of the original market amount.
14.8. The possibility to execute beyond the initial contract
a decision to continue
The decision to continue is a unilateral act which is the sole purpose of allowing the performance of benefits beyond the amount originally provided by the market and to the amount it fixes (art. 118). In no case should it upset the market economy or change its object.
Unlike the advent, contractual act, the decision to prosecute is signed by the only public person. The use of the decision to prosecute is only possible if it is provided in the market. The CCAG is working to provide the opportunity for markets that are aimed at it.
15. Why do posteriori advertising obligations?
15.1. Notice of attribution
For supplies and services markets in excess of EUR 135 000 HT for the State and EUR 210 000 HT for territorial authorities and for labour markets in excess of EUR 5,270,000 HT, the award notices are issued in accordance with the forms established by Commission Community Regulation (EC) No. 1564-2005 of 7 September 2005.
For work contracts of between EUR 210 000 HT and EUR 5,270,000 HT, they are established in accordance with the model set by an order of the Minister responsible for the economy.
The procuring authority must publish the notice of award within 48 days of the notification of the contract, under the same conditions and using the same advertising means as those used in the notice of public appeal to competition.
The publication of the notice of award allows, under these conditions, any person who is of interest, to make an individual appeal against the award decision.
15.2. The provisions of Article 133
The Public Procurement Code provides that buyers are required to publish annually a list of contracts entered into the previous year as well as the names of attributes. This provision is a guarantee of transparency in the use of public money.
The terms of application of this article are defined by the 27 May 2004 Order published in the Official Journal of 9 June 2004.
The Order provides the following details:
- the publication support of the list: the order leaves a total freedom to the administrations regarding the choice of support to communicate the list of contracts concluded the previous year. However, for the sake of economy, publication on community websites must be preferred.
- the thresholds: a gradual rise in charge: in order to allow buyers time to set up an operating system, the decree provides for a progressive implementation of the device. This transitional period is intended to address the practical difficulties that public buyers may encounter in developing their list.
- mentions to be included in the list: contracts must be presented by distinguishing according to the type of purchase: works, supplies and services. Then, within each category, the contracts must be grouped, depending on their amount, in different slices, whose amounts are specified by the order. Also have to appear on the list the object and date of the market, as well as the name of the attribute, specifying, for greater accuracy, the postal code of the market holder.
The procuring entities apply the same rules as the procuring authorities, with the exception of the exemptions expressly mentioned in the second part of the code.
16. What are the cases in which award-winning authorities may be referred to as procuring entities subject to specific procurement rules?
The procurement authorities subject to the public procurement code are referred to as procuring entities when they move from markets as network operators in the areas of water, energy and transport, and postal services. They are then subject to substantially different, more flexible rules, which transpose "sectors" directive n° 2004/17/EC of March 31, 2004.
16.1. What are the activities of network operators?
16.1.1. Activities subject to the electricity, gas or heat code are:
(a) 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;
(b) Procurement for the organization or provision of an operator of these networks;
(c) The power of these networks in electricity, gas or heat.
With respect to these activities, the procuring authority subject to the code must comply with the rules set out in Part II on procuring entities when:
- either he exploits the network himself;
- either it carries out purchases to build, organize and make the network available to a third party. The concepts of organization and provision are designed to build the network and then to entrust management to a third party in accordance with the various modes of authorized devolution. But it may also be the case where the network's rehabilitation or extension remains, despite the operating contract, at the expense of the procuring entity owner of the network;
- or it feeds the network.
The contract by which the procuring entity entrusts to a third party the management and operation of the network is therefore not automatically subject to the public procurement code. The important thing is not whether or not the entity actually operates an operating activity on the date of the market but whether or not it weighs on it on the date of the market the charge of the operation. If this is the case, the contract has then passed in accordance with the rules applicable to procuring entities.
16.1.2. Activities subject to the water code are:
(a) The operation of fixed networks to provide a service to the public in the field of the production, transport or distribution of drinking water;
(b) Procurement for the organization or provision of an operator of these networks;
(c) The supply of these drinking water networks;
(d) Contracts passed by procuring entities carrying out one of the activities mentioned in the preceding three paragraphs when these markets are related either to the disposal or treatment of waste water, or to projects of hydraulic engineering, irrigation or drainage, provided that the volume of water used for drinking water is more than 20% of the total volume of water used for these projects.
16.1.3. Activities related to the operation of a geographic area to prospect or extract oil, gas, coal or other solid fuels.
16.1.4. 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 (e.g., activities related to the operation of the air or marine space).
16.1.5. Activities subject to the Transport Code are:
(a) The operation of networks to provide a service to the public in the field of rail, tram, trolleybus, bus, bus, cable or any automatic system;
(b) Procurement for the organization or provision of an operator of these networks.
16.1.6. Postal activities.
It should be noted that La Poste does not enter the code application field. This is the postal activities carried out by some departments, such as the defence (office of the joint army post).
16.2. What exceptions are
the application of the public procurement code?
Articles 136 to 140 list a number of cases in which procurements by procuring entities are not subject to the rules of procedure and publicity of the public procurement code.
These provisions are:
(a) Cases for which the application of the code rules is excluded due to the circumstances of the purchase. These are the exclusions of section 3 of the Code applicable to procuring powers (art. 136).
(b) Cases of certain contracts passed by the procuring entity or the grouping of procuring entities with particular agencies. The justification for the exclusion lies in the nature of the co-contracting body. It is here to exclude from the scope of the code the contracts passed by a procuring entity with a business that is linked to it as long as the contract occurs in circumstances such as it may be considered to be benefits realized internally. This is a particular case of integrated benefits broader than its commonly referred to as "in-house benefits" for procuring authorities (arts. 138 and 139).
(c) Cases for which the application of the rules of the code is no longer justified insofar as the commission determined that the activity of operators was carried out in a fully competitive framework (art. 140).
16.3. What are the main procedural differences between procuring entities and procuring authorities?
The regime applicable to procuring powers when acting as procuring entities is characterized by greater flexibility in various respects:
16.3.1. The applicable thresholds.
The thresholds for procurement by procuring entities are specific thresholds for supplies and services. There are only two thresholds: that of EUR 420,000 HT for supplies and services and that of EUR 5,270,000 HT for work (the last threshold is the only one applicable to procuring powers).
16.3.2. The choice of procedures.
With regard to the selection of applicable procedures, and unlike the procuring powers, procuring entities may freely use the procedure negotiated with competition. Only the procedure negotiated without competition is restricted; little is the same as those of the procedure negotiated without advertising and without competition for the procuring powers. In addition, the competitive dialogue procedure is not provided for procuring entities. This situation is justified by the fact that in all cases procuring entities may resort to the procedure negotiated with competition. However, nothing prevents them from drawing on the dialogue procedure to conduct their negotiations.
16.3.3. The qualification system of economic operators.
The qualification system of economic operators is a system of pre-selection of operators deemed to be able to perform certain types of services. It allows for a pool in which the procuring entity can choose future contract holders. The procuring entity may even use a qualification system established by a third party. This is a pre-selection system for potential candidates, not the selection phase for a given market (arts. 152 to 155).
16.3.4. The variants.
In contrast to the existing rule for procuring powers, the variants are allowed unless otherwise specified in the documents of the consultation. Entities therefore do not need to expressly authorize them (art. 157).
16.3.5. Offers containing products from third countries.
A provision applicable only to supply markets allows procuring entities to either reject offers on the grounds that they contain a certain percentage of products originating from third countries with which the European Community has no trade agreement or to grant a right preferably to equivalence of tenders (art. 159).
16.3.6. Timeliness.
Due to the importance and complexity of procurement by procuring entities, the deadlines for receipt of bids in open tender proceedings are more important, the associated reductions are also significantly different (art. 160).
In the particular cases of the restricted tender and the negotiated procedure, the deadline for receipt of tenders is determined by mutual agreement between the entity and the selected candidates (arts. 163 and 166).
16.3.7. Minimum number of candidates admitted.
The procuring entities are not required to set a minimum number of candidates admitted to tendering an offer to 5 or 3 (arts. 162 and 165).
16.3.8. Markets for master's work.
The procuring entities are not required to make mandatory use of the competition for the master's contracts (art. 168), contrary to the procuring powers for which the competition is an imposed procedure, except where they are in one of the four derogatory cases set out in section 74 of the Code.
16.3.9. Master Agreement and purchase order.
The terms and conditions for the procurement of framework agreements and purchase orders contracts are more flexible and less supervised than those applicable to the procuring authorities, particularly with regard to the duration of such contracts, the absence of a minimum number of candidates, or the possibility of entering into contracts based on a framework agreement in accordance with the procedure negotiated without prior competition (art. 169).
16.3.10. Advertising procedure.
In terms of advertising, the notice of pre-information takes the name of an indicative periodic notice (art. 149) but outside the name it remains identical to the first.
In addition, procuring entities have three types of forms related to the notice of public competition appeal. Conversely, in contrast to the procuring powers, they may use the indicative periodic notice model or the opinion on the existence of a qualification system in addition to the classic market notice model. This possibility should allow them to shorten the procedural deadlines (art. 150).
Finally, the deadline for issuing notices of award is 2 months, whereas it is set at 48 days for procuring powers (art. 172).
16.4. What are the exit modalities
the code application field?
The code puts in place a new procedure allowing the European Commission, upon request of a Member State and after justification, to remove from the scope of the public procurement code certain activities of network operators that are considered to be carried out in competitive markets whose access is not limited, as was done for the telecommunications sector. This is a permanent mechanism that allows to change the scope of application of Community Directive No. 2004/17/EC and therefore of the code without needing to modify the existing text (see art. 140).
Done in Paris, August 3, 2006.
A N N E X E I
TEXTS
Legislation
Act No. 75-1334 of 31 December 1975 amended on subcontracting.
Act No. 85-704 of 12 July 1985 amended on mastery of public works and its relationship with mastery of private works.
Act No. 91-3 of 3 January 1991 on transparency and regularity of procurement proceedings and subjecting the transfer of certain contracts to advertising and competition rules (Title I).
Act No. 2001-1168 of 11 December 2001 on urgent measures for economic and financial reforms (MURCEF).
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, for the equal rights and opportunities, participation and citizenship of persons with disabilities, including Article 29.
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.
The decrees
Amended Decree No. 84-74 of 26 January 1984 establishing the status of standardization.
Decree No. 2001-797 of 3 September 2001 on Advisory Committees for the Amicable Settlement of Disputes or Disputes in Public Procurement.
Decree No. 2002-232 of 21 February 2002 on the implementation of the maximum period of payment in public procurement.
Decree No. 2002-677 of 29 April 2002, as amended by Decree No. 2005-90 of 4 February 2005, concerning the obligation to decorate public buildings and specifying the conditions for the procurement of contracts intended to meet this obligation.
Decree No. 2003-301 of 2 April 2003 amending the general code of territorial authorities (fixing the list of supporting documents required by the accountants before making the payment of an expenditure).
Decree No. 2004-16 of 7 January 2004 amended pursuant to Article 4 of the Public Procurement Code and concerning certain public procurements for defence purposes.
Decree No. 2004-1299 of 26 November 2004 on the commission of public markets of the State.
Decree No. 2005-1308 of 20 October 2005, as amended by Decree No. 2005-1741 of 30 December 2005, concerning the procurement contracted by the procuring entities referred to in Article 4 of Order No. 2005-649 of 6 June 2005 on contracts passed by certain public or private persons not subject to the public procurement code.
Decree No. 2005-1742 of 30 December 2005 establishing the rules applicable to contracts passed by the procuring authorities referred to in Article 3 of Order No. 2005-649 of 6 June 2005 on contracts passed by certain public or private persons not subject to the public procurement code.
The arrests
Order of September 5, 2002 for the application of Article 100, paragraph 2, of the Public Procurement Code.
Decree of 31 January 2003 taken for the application of Article 46 of the Public Procurement Code and Article 8 of Decree No. 97-638 of 31 May 1997 adopted for the application of Law No. 97-210 of 11 March 1997 on the strengthening of the fight against illegal labour.
Judgment of 16 February 2004 pursuant to Article 2 of Decree No. 2004-16 of 7 January 2004 concerning certain public contracts passed for defence purposes and setting the model of the form for the publication of notices of public appeal to competition.
Order of May 27, 2004 pursuant to section 138 of the Public Procurement Code and the list of contracts entered into the previous year by public officials.
Order of March 22, 2005 pursuant to Article 1 of Decree No. 2002-677 of April 29, 2002 concerning the obligation to decorate public buildings and specifying the conditions for the procurement of contracts intended to meet this obligation.
Decree of 18 April 2005 on conditions for the protection of secrecy and information concerning national defence and the security of the State in contracts.
Order of November 10, 2005 pursuant to section 136 of the Public Procurement Code and related to the economic observatory of public procurement.
Information circular
The DILTI Inter-Ministerial Circular of 31 December 2005 on the financial solidarity of the labour donors concealed in the Official Bulletin of Labour, Employment and Vocational Training No. 2006/03 of 30 March 2006. - Dissemination: Official Journals Directorate Work 2006/3, text 1/56, pages 1 and following (NOR: SOCL0510447C) (text not published in the Official Journal of the French Republic).
All useful texts are updated on a permanent basis and are available on the website: http://www.minefi.gouv.fr
A N N E X E I
COORDINATED OF COUNCIL SERVICES
AND INFORMATION ON PUBLIC MARKES
A number of information services are available to buyers on any public procurement issue:
The legal information unit for public buyers located in Lyon, which depends on the general management of public accounting, is available to all local buyers, who can contact it either:
- by telephone: 04-72-56-10 from Monday to Friday from 8:30 to 12:30;
- by fax: 04-72-40-83-04 (do not forget to indicate the contact details of the person to be recalled);
- by email by filling out the form available on the website: www.colloc.minefi.gouv.fr/rubrique Public markets/legal information cell to public buyers.
The Office of the Council to Public Buyers of the Directorate of Legal Affairs of the Ministry of Industry, Economy and Finance, for State central administrations and its public institutions:
- by phone: 01-44-97-03-20;
- by fax: 01-44-97-06-50;
- by email at daj-marches-publics@daj.finances.gouv.fr
The State Public Procurement Commission responsible for providing State services with assistance for the procurement and development of their markets:
- by telephone: 01-44-97-06-62/01-44-97-33-28;
- by fax: 01-44-97-06-64;
- by email at cmpe@daj.finances.gouv.fr
Public market information sites:
The texts, as well as the main procurement support forms, are available at the Ministry of Economy, Finance and Industry sites: http://www.minefi.gouv.fr and http://www.colloc.minefi.gouv.fr/
All forms templates are also available on the website: http://djo.journal-officiel.gouv.fr/MarchesPublics/
Information about community data can be found on the "Public Procurement Information System" website: http://simap.eu.int
For all useful purposes, buyers can also consult the website: http://www.legifrance.gouv.fr
Minister of Economy,
finance and industry,
Thierry Breton
Minister for Budget
and the reform of the state,
Government spokesperson,
Jean-François Copé
