Key Benefits:
The Prime Minister,
On the report of the Minister of Economy, Finance and Industry,
Considering the Treaty establishing the European Community;
Considering Directive 2004/17/EC of the European Parliament and of the Council of 31 March 2004 on the coordination of procurement procedures in the sectors of water, energy, transport and postal services, as amended by Directive 2005/51/EC of the Commission of 7 September 2005 amending Annex XX of Directive 2004/17/EC and Annex VIII of Directive 2004/18/EC of the European Parliament and the Council on Public Procurement;
In view of Commission Regulation (EC) No 1564/2005 of 7 September 2005 establishing the standard forms for the publication of notices as part of the procurement procedures in accordance with Directives 2004/17 and 2004/18 of the European Parliament and the Council;
Considering the Civil Code, including articles 1316 and 1316-1 to 1316-4;
Considering the Labour Code, including articles R. 324-4 and R. 324-7;
Considering the new Civil Procedure Code, including articles 1441-1 and 1441-2;
In light 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;
Considering the amended Decree No. 84-74 of 26 January 1984 establishing the status of standardization;
In view of Decree No. 93-1269 of 29 November 1993 on architectural and engineering competitions organized by public works owners;
Having regard to Decree No. 93-1270 of 29 November 1993 implementing Article 18 of Act No. 85-704 of 12 July 1985 amended on the mastery of public works and its relationship with the mastery of private works;
The State Council (Finance Section) heard,
Decrete:
The provisions of this Order apply to the contracts and framework agreements defined in section 1 of the above-mentioned order of June 6, 2005 passed by the procuring entities defined in section 4 of the Order.
I. - Benefits that are the subject of a contract are defined in the consultation documents by technical specifications formulated:
1° refers to standards or other equivalent documents accessible to candidates, including technical approvals or other technical references developed by standardization bodies;
2° Either in terms of performance or functional requirements. These are sufficiently precise to allow candidates to know exactly the subject matter of the market and the procuring entity to award the contract. They may include environmental characteristics.
An order by the Minister responsible for the economy specifies the content of the technical specifications.
II. - The procuring entity determines the benefits that are the subject of the contract it passes:
1° Either using exclusively any of the categories of technical specifications mentioned in 1° and 2° of I;
2° Either by combining them.
This combination is operated:
(a) Either by defining performance or functional requirements and specifying the reference to the standards or other equivalent documents referred to in 1° of I that are presumed to be able to perform these performance or meet these requirements;
(b) Either using equivalent standards or other documents for certain aspects of the market and performance or functional requirements for others.
I. - The technical specifications referred to in I of Article 2 allow the equal access of candidates and may not have the effect of creating unjustified obstacles to the opening of markets to competition. Whenever possible, they are established to take into account accessibility criteria for persons with disabilities or, for all users, functionality criteria.
II. - Technical specifications may not refer to a particular mode or process of manufacture or to a particular origin or origin, or refer to a mark, patent or type, provided that such a reference or reference would have the effect of promoting or eliminating certain economic operators or certain products. However, such a reference or reference is possible if it is justified by the subject-matter of the market or, exceptionally, in case a sufficiently precise and intelligible description of the subject-matter of the market is not possible without it and provided that it is accompanied by the terms "or equivalent".
III. - When the procuring entity uses a technical specification formulated in accordance with the terms set out in 1° of I of Article 2, it cannot reject an offer on the ground that it is not in accordance with this specification, if the applicant proves in its offer, by any appropriate means, that the solutions it proposes meet this specification in an equivalent manner.
IV. - When the procuring entity defines performance or functional requirements according to the terms set out in 2° I of Article 2, it cannot reject an offer if it conforms to equivalent standards or documents that themselves correspond to the performance or functional requirements required.
The applicant is required to demonstrate, by any appropriate means, that the equivalent standards or documents contained in the offer meet the required performance or functional requirements. May constitute an appropriate means of proof within the meaning of this Article a manufacturer's technical record or a test report of a recognized body. Organizations recognized as defined in this section are: testing or sizing laboratories and inspection and certification bodies in accordance with applicable European standards. The procuring entities accept certificates from bodies recognized in other Member States.
V. - When the performance or functional requirements defined under 2° I of Article 2 have environmental characteristics, they may be defined by reference to any or part of an ecolabel, however:
1° That this ecolabel be appropriate to define the characteristics of supplies or services being marketed;
2° That the mentions in the eco-label were established on the basis of scientific information;
3° That the eco-label was the subject of an adoption procedure in which representatives of government agencies, consumers, manufacturers, distributors and environmental organizations participated;
4° That eco-label be accessible to all interested parties.
The procuring entity may indicate in the consultation documents that products or services that have obtained an ecolabel are presumed to meet the environmental characteristics referred to in the technical specifications but is required to accept any appropriate evidence.
The conditions for the execution of a market or framework agreement may include elements of a social or environmental nature, including the promotion of the employment of people with special difficulties in insertion, combating unemployment or protecting the environment. They are specified in one of the notices of appeal referred to in section 16 or in the documents of the consultation.
These performance conditions may not have a discriminatory effect on potential candidates.
The duration of a contract as well as, where applicable, the number of its reappointments shall be determined taking into account the nature of the benefits and the need for periodic competition.
A market may provide for one or more extensions provided that its characteristics remain unchanged and that the competition has been achieved taking into account the total duration of the market, including the renewal period.
The prices of the services being marketed are either unit prices applied to the quantities actually delivered or executed, or flat prices applied to all or part of the market, regardless of the quantities delivered or executed.
Incentives related in particular to delivery times, seeking better quality of services and reducing production costs can be inserted into markets.
Markets may include clauses for updating, adjusting and reviewing prices.
I. - Above the threshold of EUR 470 000 HT for supplies and services markets and the threshold of EUR 5,900,000 HT for labour markets, contracts and framework agreements have passed according to one of the following formalized procedures, freely chosen by the procuring entity:
1° The procedure negotiated with prior competition;
2° Open or restricted tendering;
3° The contest procedure.
II. - The procuring entities may also use the negotiated procedure without prior competition in the following cases:
1° For markets that have not been subject to any appropriate offer or offer or for which no application has been filed under a formalized procedure, provided that the initial market conditions are not substantially amended;
2° For markets concluded solely for the purposes of research, testing, experimentation, study or development without the objective of profitability or recovery of research and development costs and to the extent that the procurement of such a contract does not prejudice the competition of subsequent markets that pursue such a goal;
3° For markets that can only be entrusted to a specified economic operator for technical, artistic or exclusive rights protection purposes;
4° To the extent strictly necessary, where a compelling emergency resulting from unpredictable circumstances for the procuring entity and not being of its fact is not compatible with the deadlines required by the tendering or contracting procedures negotiated with prior competition;
5° For complementary markets of supplies that are executed by the original supplier and that are intended either for the partial renewal of supplies or common use facilities, or for the extension of existing facilities, where the change of supplier would require the procuring entity to acquire a different technical equipment resulting in in incompatibility with the already acquired equipment or technical difficulties of disproportionate use and maintenance;
6° For complementary contracts of services or works that consist of benefits that do not appear in the initially concluded market but that have become necessary, as a result of an unforeseen circumstance, to the performance of the service or to the realization of the work as described in the initial market, provided that the award is made to the economic operator who has performed this service or carried out this work:
(a) Where such complementary services or work cannot be technically or economically separated from the main market without major disadvantage to the procuring entity;
(b) When these services or works, although separable from the execution of the initial market, are strictly necessary for its complete completion;
7° For work contracts with the purpose of carrying out works similar to those entrusted to the holder of a previous contract after competition.
The first market must have indicated the possibility of using this procedure for the realization of similar works. Its competition must also have taken into account the total amount envisaged, including the amount of new work;
8° For markets with the purpose of buying raw materials listed and purchased at a stock exchange;
9° For contracts under a framework agreement referred to in Article 42;
10° For markets with the purpose of purchasing supplies that it is possible to acquire by taking advantage of a particularly advantageous opportunity that occurs in a very short period of time and that allows to pay a price considerably lower than the normally market prices;
11° For markets with the purpose of purchasing supplies under particularly advantageous conditions, either from a supplier on a final termination of business or from liquidators of a bankruptcy or similar procedure;
12° For service markets that are awarded to one or more recipients of a contest. When there are several winners, they are all invited to negotiate.
III. - Contracts may also be contracted on the basis of a framework agreement or dynamic acquisition system in accordance with sections 42 and 43.
As regards their procurement, the following services contracts are subject to the rules set out in this title:
1° Maintenance and repair services;
2° Ground transportation services, including armoured vehicle services and mail services;
3° Air transportation of passengers and goods;
4° Mail transport services by land and air transport;
5° Telecommunications services;
10° Financial services: insurance, banking and investment services, subject to the provisions of 2° and 3° of section 7 of the above-mentioned order of 6 June 2005;
11° Computer services and related services;
12° Research and development services, subject to the provisions of 4° of section 7 of the above-mentioned order of 6 June 2005;
13° Accounting, audit and bookkeeping services;
14° Market studies and surveys services;
15° Management consulting and related services, subject to the provisions of 10° of section 7 of the above-mentioned June 6, 2005 order;
16° Architecture services; engineering services and integrated engineering services; urban planning and landscape architecture services; related scientific and technical consultations; technical testing and analysis services;
17° Advertising services;
18° Building cleaning services and property management services;
19° Publishing and printing services paid on a royalty or on a contractual basis;
20° Raw and garbage removal services, sanitation services and similar services.
With the exception of sections 2, 3 and 45, the provisions of this Order do not apply to service markets for benefits not mentioned in section 8. These contracts have been contracted in terms freely defined by the procuring entity.
Where a contract is aimed at both the services referred to in section 8 and the services that do not fall within the scope of the contract, the contract is passed in accordance with the provisions of section 8 if the value of the services referred to in that section exceeds the value of those that do not fall within the scope of the contract.
Below the thresholds set out in Article 7 I, the contracts have passed in a manner freely defined by the procuring entity.
Except where the procuring entity expressly decides to implement one of the formalized procedures, the technical characteristics of supplies, services or work that are brought to the knowledge of the applicant(s) may be described in a very brief manner.
I. - The estimated amount of the contract(s) to meet a need is determined under the following conditions, regardless of the number of economic operators to which it is called.
The procuring entity may not be exempt from the application of this Order by scintillating its purchases or by using methods for calculating the estimated value of markets other than those provided for in this Article.
1° With respect to the work, the overall value of the work related to an operation on one or more works, as well as the value of the supplies and services required for their realization that the procuring entity makes available to the operator.
There is a work operation when the procuring entity makes a decision to implement, within a limited period of time and scope, a set of work characterized by its functional, technical or economic unit.
2° For supplies and services, to assess the amount of requirements to be compared to thresholds, an estimate of the total value of supplies or services that may be considered homogeneous either because of their own characteristics or because they constitute a functional unit is made.
The delimitation of a homogeneous category of supplies or services shall not have the effect of removing markets from the rules that are normally applicable to them under this Order. For markets of a term of less than or equal to one year, with a regularity character and meeting one or more needs, the total value mentioned above is that which corresponds to the needs of one year.
II. - When a purchase can be made by separate batches, the estimated overall value of all of these lots is taken into account.
Adjudicative entities may decide to implement either a single competition procedure for all lots or a competition procedure for each lot. Regardless of the option chosen, where the cumulative value of the lots is equal to or greater than the thresholds set out in I of Article 7, the procedure or procedures to be implemented are the formalized procedures referred to in Article 7.
However, procuring entities may waive this obligation and implement the terms and conditions set out in section 10 for lots less than EUR 80,000 HT in the case of supplies and services markets and for lots less than EUR 1,000 000 HT in the case of work contracts, provided that the cumulative amount of these lots does not exceed 20% of the total value of the lots.
III. - If the procuring entity provides premiums for the benefit of the candidates, it takes them into account to calculate the value of the contract.
IV. - For framework agreements and dynamic acquisition systems, the value to be taken into account is the estimated maximum value of all the markets envisaged during the total duration of the framework agreement or dynamic acquisition system.
Contracts of an amount equal to or greater than the thresholds set out in Article 7 I have been written.
The means of transmission of documents and information that are chosen by the procuring entity must be accessible to all economic operators and may not have the effect of restricting the access of candidates to the award procedure.
The transmissions, exchanges and storage of information are carried out in such a way as to ensure the integrity of the data and the confidentiality of applications and offers and to ensure that the procuring entity is aware of the content of the applications and offers only at the expiry of the deadline for the submission of the applications.
I. - The written documents mentioned in this decree may be replaced by the production of electronic physical support or by electronic exchange.
Devices used to communicate by electronic means, as well as their technical characteristics, must be non-discriminatory, generally available and compatible with information and communication technologies generally used.
II. - The following rules apply to electronic transmission and reception devices for applications and offers:
1° Information on how to submit applications and offers electronically, including encryption, is available to interested parties;
2° Candidates and offers transmitted electronically or electronically are submitted under conditions that allow the candidate to be authenticated according to the requirements set out in sections 1316, 1316-1 to 1316-4 of the Civil Code;
3° The transmission of applications and offers is subject to a certain date of receipt;
4° All necessary technical measures, including encryption and security, are taken so that no one can access the data transmitted by the candidates before the deadlines for receipt of applications and offers, and that any violation of this prohibition is easily detectable.
I. - From the threshold of EUR 750,000 HT for supplies and services and EUR 5,900,000 HT for work, an indicative periodic notice, in accordance with the model set out in the above-mentioned Community Regulation No. 1564/2005, is, at least once a year, sent for publication to the Office of Official Publications of the European Union, published on the purchasing profile of the procuring entity. The buyer profile of the procuring entity is the dematerialized site to which it uses for its purchases.
The procuring entity that publishes the indicative periodic notice on its buyer's profile sends an electronic notice to the European Union Office of Official Publications announcing the publication of this notice. The date of this shipment is indicated on the indicative periodic notice published on the buyer's profile.
II. - The publication of an indicative periodic notice is mandatory only for the procuring entity who intends to use the ability to reduce the time for receipt of tenders under Article 37.
III. - For supplies and services markets, this notice indicates the total amount of contracts or framework agreements, estimated by categories of homogeneous products or services, that the procuring entity plans to spend within 12 months of the publication of the notice.
If it concerns supplies or services to be purchased during a fiscal year, this notice is sent as soon as possible after the beginning of this fiscal year.
IV. - For work contracts, the notice indicates the essential characteristics of the contracts or framework agreements that the procuring entity intends to spend over the next 12 months.
The notice is sent as soon as possible after the decision to carry out a programme of work, in which the contracts of work or framework agreements that the procuring entities intend to pass.
V. - The procuring entities may publish or publish indicative periodic notices relating to important projects without repeating the information already contained in an earlier indicative periodic notice, provided that it is clearly stated that these notices are additional notices.
VI. - When the procuring entities publish an indicative periodic notice, they communicate to the applicants who request the technical specifications that they are usually included or that they now intend to be included in the markets with the same object as that mentioned in the notice.
I. - The competition of contracts passed according to one of the formalized procedures referred to in Article 7 results in the publication of a notice of appeal.
This notice is consistent with the market notice model or the indicative periodic notice model or the notice model on the existence of a qualification system set out in the above-mentioned Community Regulation (EC) No 1564/2005.
For markets under a dynamic procurement system, the notice is consistent with the simplified market notice established by the same Community Regulation.
II. - The notice of appeal is sent for publication in the Official Journal of the European Union.
When the procuring entity decides to add to the publication referred to in the preceding paragraph another publication, the notice for that other publication may not be sent before the notice is sent to the Office of Official Publications of the European Union, of which it mentions the date, and may not provide information other than those published in the Official Journal of the European Union or published on a profile of the purchaser.
The procuring entity must be able to demonstrate the date of the notices being sent.
I. - Where the procuring entity uses the model of the indicative periodic notice as a notice of appeal, this document shall include the references set out in section 15 and, in addition,
1° Refers specifically to supplies, works or services that are the subject of the market to pass;
2° Specifies that no market notices will be published later and invites economic operators to express their interest in writing.
II. - The procuring entity addresses all economic operators who have expressed their interest a letter inviting them to confirm this interest. This letter supplements the indicative periodic notice and includes at least the following information:
1° The nature and quantity of the benefits requested, including those that fall within the scope of possible complementary contracts or renewals, as well as an estimate of the time frame in which the procuring entity will decide to use complementary contracts or renewals;
2° The type of restricted or negotiated procedure chosen;
3° The dates on which the market owner will begin or complete the delivery of supplies or the execution of works or services;
4° The address and deadline for filing applications to obtain the documents of the consultation and the requirement to prepare them in the French language;
5° Identification of the service that passes the market and that, if different, that provides the information necessary to obtain the documents of the consultation;
6° The amount and modalities of payment of any amounts to be paid to obtain the documents of the consultation;
7° Information on the required professional, technical and financial capacities of candidates;
8° The attribution criteria, as well as their weighting or hierarchy, if this information is not included in the indicative periodic notice.
The indicative periodic notice becomes invalid if the letter referred to in the first paragraph is not sent within twelve months of the publication of the notice.
I. - The procuring entity may request candidates to provide information to assess their experience, professional, technical and financial capacities, and documents relating to the powers of the persons authorized to hire them.
The procuring entity may require economic operators to produce quality certificates. These certificates, issued by independent bodies, are based on European standards.
For contracts of work or services that warrant it, the procuring entity may require the production of certificates, established by independent organizations, and attesting their ability to apply environmental management measures for contract execution. These certificates are based on the Community Environmental Management and Audit System (EMAS) or European or international environmental management standards.
In the cases provided for in the preceding two paragraphs, the procuring entity accepts the equivalent certificates of bodies established in other Member States and other equivalent evidence.
To justify its professional, technical and financial capabilities, the candidate, even if it is a grouping, may also request that the professional, technical and financial capacities of other economic operators be taken into account, regardless of the legal nature of the links between these operators and him. In this case, it must justify the capabilities of this or these economic operators and the fact that it will have it for the execution of the market.
II. - The candidate also produces in support of his or her application:
1° If it is in judicial recovery, the copy of the judgment(s) pronounced;
2° A statement on honour, duly dated and signed, to justify:
(a) That he has met his tax and social obligations;
(b) That in any of the cases referred to in section 8 of the above-mentioned order.
I. - The candidate to which the contract is considered to be awarded further produces:
1° The documents provided for in articles R. 324-4 and R. 324-7 of the Labour Code or, with respect to the documents mentioned in the second article, and for a candidate established in another State than France, any equivalent part required in the State of origin.
2° Certificates and certificates issued by the competent authorities and agencies proving that they have met their tax and social obligations. An order of interested ministers sets out the list of competent administrations and bodies and the list of taxes and social contributions to be issued.
II. - In order to meet the obligations set at 2° I, the candidate established in a State other than France produces a certificate established by the administrations and bodies of the country of origin. Where such a certificate is not issued by the country concerned, it may be replaced by an affidavit or, in States where such an oath does not exist, by a "solemn declaration made by the individual before the competent judicial or administrative authority, a notary or a qualified professional body of the country.
III. - The contract may only be awarded to the candidate whose offer has been selected if the candidate produces the certificates and certificates provided for in I and II of this article within the specified time limit. If it cannot produce these documents within the time limit, its offer is rejected and is eliminated.
The following candidate is then asked to produce the necessary certificates and certificates before the contract is awarded to him.
If necessary, this procedure may be reproduced as long as appropriate offers remain for the procuring entity. If the remaining offers, although conforming to the subject-matter of the market, are not acceptable, the procurement procedure may be declared without action or, in the event of a tender or procedure negotiated with prior, unsuccessful competition.
IV. - The documents mentioned in I and II prepared by foreign agencies are written in French or accompanied by a translation in French certified in accordance with the original by a sworn translator.
The contract provides for the conditions of termination by the procuring entity, the wrongs of the holder, in the event of inaccuracy of the information provided for in 1° and 2° of II of section 18 as well as in I and II of section 19.
In the notice of appeal or in the consultation documents, the procuring entity may request candidates to indicate in their offer the share of the market that they intend to subcontract to third parties, including small and medium-sized enterprises or artisans.
When the procuring entity relies on several criteria for awarding the contract, it may authorize candidates to submit variants.
The procuring entity indicates in the notice of appeal or in the consultation documents whether or not it authorizes the variants.
The consultation documents mention the minimum requirements that variants must meet and the terms and conditions of their presentation. Only variants that meet these minimum requirements can be considered.
For supplies or services markets, a variant may not be rejected on the sole ground that it would result, if retained, either in a service market instead of a supply market or in a supply market instead of a service market.
Groups of economic operators are allowed to run candidates. For the submission of an application or offer, the procuring entity may not require that the grouping of economic operators have a specified legal form, but the selected grouping may be forced to take such form when the contract has been awarded to it, if this transformation is necessary for the proper execution of the market. In this case, the form that will be imposed after attribution is mentioned, unless impossible, in the notice of competitive appeal or in the documents of the consultation.
I. - A procuring entity may establish and manage an economic operators qualification system. An economic operator qualification system is a pre-selection system of operators deemed to be capable of performing certain types of services.
To create it, the procuring entity publishes a notice on the existence of a qualification system under the conditions set out in section 16. This notice indicates the purpose of the system and the terms and conditions of access to the criteria and rules on which it is based. It fixes its duration or indicates that it is indefinite. In the event that the duration of this system exceeds three years, the publication of the notice is renewed each year.
II. - The qualification system of economic operators is based on objective criteria and qualification rules. Among these criteria, the ability of candidates to meet technical specifications within the meaning of articles 2 and 3.
III. - When the procuring entity sets criteria and qualification rules with requirements for the professional, technical and financial capacity of the economic operator, the provisions of the fifth paragraph I of Article 18 shall apply throughout the period of validity of the qualification system.
IV. - The procuring entity ensures that economic operators can at any time ask to be qualified. The qualification criteria and rules are provided upon request. The updated criteria and rules are communicated to them.
V. - The procuring entity may use a qualification system established by a third party. It informs interested economic operators.
When it manages a qualification system or uses such a system for the choice of candidates admitted to participate in a restricted or negotiated procedure, the procuring entity ensures equal treatment of economic operators. It can neither impose administrative, technical or financial conditions on certain economic operators that would not have been imposed on others, nor require tests or justifications that would duplicate evidence already available.
I. - The economic operator who requests to be qualified shall be informed of the decision made on the subject within four months of the filing of the application. This period may be extended by not more than two months, provided that the economic operator who requests to be qualified is informed of this extension within two months of the request. The reasons for this extension and the date on which a decision will be made are also indicated.
II. - When the procuring entity decides to reject a qualification application, it shall inform the economic operator of the reasons for its decision, within a maximum of fifteen days from the date of that decision. These grounds must be based on the qualification criteria referred to in Article 24 II.
III. - A procuring entity may terminate the qualification of an economic operator only for reasons based on the qualification criteria referred to in Article 24. The intention to terminate the qualification is previously notified to the operator, in written reasons, at least fifteen days before the scheduled date to terminate the qualification.
A survey of qualified economic operators is maintained by the procuring entity. It is divided into categories by types of markets for which qualification is valid.
I. - Before proceeding with the examination of applications, if the procuring entity finds that documents whose production was claimed are absent or incomplete, the procuring entity may request all interested candidates to produce or complete these documents within the same time limit for all.
II. - The procuring entity shall select candidates in the light of the information provided under section 18 and the criteria set out in the notice of appeal or in the documents of the consultation.
III. - In the event of a restricted or negotiated procedure, the procuring entity may limit the number of applicants admitted to making an offer to a level justified by the desire to proportionate the means applied to the requirements of the chosen procedure. The number of successful candidates takes into account the need to ensure sufficient competition.
IV. - In the event of a restricted or negotiated procedure, when the procuring entity uses the notice on the existence of the qualification system defined in Article 24 as a notice of appeal, the candidates admitted to participate are selected from the qualified economic operators according to such a system. The provisions of article II and article III shall apply.
I. - The procuring entity verifies the conformity of bids submitted by candidates selected to the requirements set out in the consultation documents and assigns the contract based on the criteria set out in II.
II. - To award the contract to the candidate who presented the most economically advantageous offer, the procuring entity is based on:
1° Whether on a variety of criteria, including delivery or delivery time, overall cost of use, profitability, quality, aesthetic and functional character, environmental characteristics, technical value, innovative character, after-sales service and technical assistance, commitments made for the supply of spare parts, security of supply and price. Other criteria may be taken into account if justified by the purpose of the market;
2° Either on the only price criterion.
III. - When several criteria are provided, the procuring entity specifies their weighting.
The weight of each criterion can be expressed by an appropriate range.
When the procuring entity considers it possible to demonstrate that the weighting is not possible, it indicates the criteria in descending order of importance.
The weighting or prioritization of the criteria is indicated in the notice of appeal, in the letter referred to in the fourth paragraph of section 17, in the letter of consultation or in the documents of the consultation.
I. - An electronic auction is an electronic bid selection procedure that allows candidates to review their prices and change the value of some other quantifiable elements of their offer.
II. - The procuring entity may only use the electronic auction for the supply markets above the threshold set out in Article 7 I.
The procuring entity may not use electronic auctions in an abusive manner or in a manner that prevents, restricts or distorts competition or in a manner that alters the subject matter of the market.
III. - The electronic auction covers the price, other quantifiable criteria or both on the price and other quantifiable criteria.
IV. - The procuring entity that decides to use an electronic auction referred to in the notice of appeal.
The consultation documents contain, at least, the following information:
1° Quantified elements of the offers on which the electronic auction carries;
2° Where applicable, the maximum variation of these quantified elements;
3° The nature of the information that will be communicated to candidates during the electronic auction and the time at which they will be provided;
4° Relevant information on the conduct of the electronic auction, including the conditions under which candidates can bid and the minimum deviations that, if applicable, will be required;
5° Relevant information on the electronic device used and the technical connection specifications and specifications;
6° The duration of the auction;
V. - The electronic auction begins after the bids have been evaluated against the criteria not being auctioned.
All candidates who have submitted bids within the meaning of Article 29 I are invited simultaneously electronically to participate in the auction by presenting new prizes or new values.
When the choice of market attribute is not based on the only price criterion, the invitation to each candidate is accompanied by the result of the evaluation of the offer made under the first paragraph.
The invitation also mentions the mathematical formula that will determine during the electronic auction automatic reclassifications according to the new prices or new values presented. This formula incorporates the weighting of all criteria set out in the notice of competitive appeal or in the consultation documents to determine the most advantageous offer.
In cases where variants are allowed, formulas must be provided separately for each variant.
VI. - The electronic auction may take place in several phases under conditions specified in the consultation documents. It cannot start less than two business days after the date of the invitations.
VII. - Candidates are informed instantly of their ranking or the amounts corresponding to the best offer. They may also be informed of the number of bidders to the auction and, if the consultation documents provide, of the prizes and values proposed by the other candidates. However, in no case can the identity of the candidates be disclosed during the phases of the electronic auction.
VIII. - The procuring entity closes the electronic auction according to one of the following:
1° On the date and time fixed in the invitation to participate in the auction;
2° When it no longer receives new auctions under the conditions provided by the invitation to participate in the auction;
3° When all phases of the auction, provided in the invitation to participate in the auction, took place.
IX. - After the closing of the electronic auction, the contract is awarded in accordance with Article 29 II, based on the results of the electronic auction and provided that the successful candidate produces the certificates and certificates referred to in Article 19 I and II, under the conditions established by Article 19 III.
When bids submitted as part of a procurement of supplies contain products originating from third countries with which the European Community has not entered into agreements in a multilateral or bilateral framework providing effective access to the markets of the European Community, these offers may be rejected when the share of products originating from third countries exceeds 50% of the total value of the products composing these offers. For the purposes of this article, software used in telecommunications network equipment is considered to be products.
Where two or more offers are equivalent to the award criteria, a preference is given to that of offers that cannot be rejected under the provisions of the preceding paragraph. For the purposes of these provisions, two offers are considered equivalent if the difference between their prices does not exceed 3%.
However, an offer is not preferred to an equivalent offer where this option would lead the procuring entity to acquire equipment with technical characteristics different from those of the equipment it already possesses and would result in technical difficulties of use or maintenance or disproportionate costs.
If an offer appears abnormally low, the procuring entity may dismiss it by reasoned decision after having requested in writing the details it considers useful and verified the justifications provided.
Can be taken into account justifications, including:
1° The manufacturing of products, the delivery of services, the construction processes;
2° The technical solutions adopted or the exceptionally favourable conditions available to the candidate to perform the work, provide the products or perform the services;
3° The originality of the offer;
4° Provisions relating to the working conditions in force where the performance is performed;
5° The possibility of obtaining State aid by the candidate.
An abnormally low offer as a result of obtaining State aid can only be rejected if the candidate is not in a position to prove that this assistance has been legally granted. The procuring entity that rejects an offer for this reason informs the European Commission.
The minimum deadline for receipt of applications, in response to a notice of contract or in response to an invitation made by the procuring entity under section 17, is twenty-two days from the date the notice or invitation was sent or fifteen days if the notice was sent electronically or by fax.
I. - A consultation letter is sent simultaneously to all selected candidates.
At least this letter of consultation includes:
1° A copy of the consultation documents, or if they are not detained by the procuring entity, the address of the service to which the consultation documents may be obtained immediately upon request and the deadline for submitting the request, or the conditions of access to such documents if made available directly electronically;
2° The date and time limit for receipt of tenders, the address to which they are transmitted and the mention of the obligation to write them in French;
3° References of the published market notice(s);
4° If applicable, the deadline for requesting additional information;
5° The list of documents to be provided with the offer;
6° The criteria for awarding the contract if not mentioned in the notice of competitive appeal;
7° The weighting of market allocation criteria or, where appropriate, their prioritization, if this information is not included in the notice of competitive appeal or in the consultation documents.
II. - The deadline for receipt of tenders may be agreed between the procuring entity and the selected candidates.
In the absence of an agreement on the deadline for receipt of tenders, the procuring entity shall set a time limit that is at least ten days from the date of the letter of consultation.
III. - When the additional information is not made available electronically, it is sent to the economic operators who request it in due time no later than six days before the deadline for receiving the offers.
IV. - The minimum period provided for in II is extended in the following assumptions:
1° When the time limit provided for in the III cannot be met;
2° Where bids can only be filed following a visit to the market enforcement sites or after consultation on site of additional documents.
Applicants are informed of the new deadline set.
The tender is the procedure by which the procuring entity chooses the most economically advantageous offer, without negotiation, on the basis of objective criteria previously communicated to the candidates.
The tender may be open or restricted.
The call for tenders is said to be open when any economic operator can deliver an offer.
The call for tenders is said to be restricted when only the economic operators who have been authorized to do so can submit offers after selection.
Without prejudice to Title I of Decree No. 93-1270 of 29 November 1993 referred to above, the call for limited tenders shall take place in accordance with the provisions of Articles 38 to 40.
The choice between the two forms of tender is free.
I. - 1° The deadline for receipt of tenders may not be less than fifty-two days from the date the notice of appeal is sent.
2° This minimum period may be reduced to twenty-two days when three conditions are met:
(a) The indicative periodic notice provided for in Article 15 has been published;
(b) This notice was sent to the publication at least fifty-two days and not more than twelve months before the date of the notice of appeal;
(c) It contains the same information as those contained in the notice of appeal, provided that this information is available at the time of the submission of the indicative periodic notice.
3° The deadlines mentioned in 1° and 2° can be reduced:
(a) Seven days when a notice of appeal is sent electronically or by fax;
(b) Five days when the procuring entity provides, electronically and from the date of publication of the notice of appeal, free, direct and complete access to the consultation documents by indicating in the notice the internet address to which these documents are available.
4° The 3° reductions can be accumulated.
5° The cumulative number of reductions under this section may, however, in no case result in a time limit for receipt of bids less than fifteen days from the date of delivery of the notice of appeal or twenty-two days if the notice of appeal has not been sent electronically or by fax.
II. - When the consultation documents are not accessible electronically, they are sent to the operators who request them in due course within six days of their request.
Additional information requested in due course is sent to economic operators no later than six days before the deadline for receipt of the offers.
III. - The minimum time limits mentioned in I are extended in the following assumptions:
1° When the time limits provided for in II cannot be met;
2° Where bids can only be filed following a visit to the market enforcement sites or after consultation on site of additional documents. Applicants are informed of the new deadline set.
The minimum deadline for receipt of applications, in response to a notice of appeal or in response to an invitation referred to in section 17 made, is twenty-two days, from the date of sending the notice or invitation, or fifteen days if the notice was sent electronically or by fax.
A consultation letter is sent simultaneously to all selected candidates. At least this letter of consultation includes:
1° A copy of the consultation documents or, if not detained by the procuring entity, the address of the service to which the consultation documents may be obtained immediately upon request and the deadline for submitting the request, or the conditions of access to such documents if made available directly electronically;
2° The date and time limit for receipt of tenders, the address to which they are transmitted and the mention of the obligation to write them in French;
3° References of the published market notice(s);
4° If applicable, the deadline for requesting additional information;
5° The list of documents to be provided with the offer;
6° The criteria for awarding the contract if not mentioned in the notice of competitive appeal;
7° The weighting of market allocation criteria or, where appropriate, their prioritization, if this information is not included in the notice of competitive appeal or in the consultation documents.
I. - The deadline for receipt of tenders may be agreed between the procuring entity and the selected candidates.
In the absence of an agreement on the deadline for receipt of tenders, the procuring entity shall set a time limit that is at least ten days from the date of the letter of consultation.
II. - When the additional information is not made available electronically, it is sent to the economic operators who request it in due time no later than six days before the deadline for receiving the offers.
III. - The minimum period referred to in I is extended in the following assumptions:
1° When the time limits provided for in II cannot be met;
2° Where bids can only be filed following a visit to the market enforcement sites or after consultation on site of additional documents.
Applicants are informed of the new deadline set.
The contest is the procedure by which the procuring entity chooses, after competition and advice from a jury, a plan or project, particularly in the field of land development, urban planning, architecture, engineering or data processing, before awarding a contract to one of the contest winners.
The contest may be open or restricted.
Without prejudice to the specific requirements set out in Title I of Decree No. 93-1269 of 29 November 1993 referred to above, the competition procedure shall be conducted as follows.
A notice of examination is published under the conditions of section 16.
The jury is composed exclusively of persons who are independent of the contest participants. When a particular professional qualification is required to participate in a competition, at least one third of the members of the jury must have that qualification or equivalent qualification.
The jury examines the plans and projects presented by the candidates anonymously and based exclusively on the criteria set out in the notice of examination. It shall record, in a record, signed by its members, its choices and observations and, where appropriate, any point requiring clarification.
If applicable, candidates may be invited by the jury to respond to the requests for clarifications that the jury has recorded in the minutes. A full report of this dialogue between the members of the jury and the candidates is prepared.
The procuring entity chooses the winner(s) of the contest.
Participants in the competition are compensated in accordance with the terms and conditions set out in the competition regulations.
The procuring entities may enter into framework agreements under the following conditions:
I. - To conclude a framework agreement, the procuring entity shall adhere to the rules applicable to one of the formalized procedures defined in Article 7. The choice of the holders of the framework agreement and the holders of the contracts passed on the basis of these framework agreements shall be made by application of the criteria defined in accordance with Article 29.
II. - Contracts entered into on the basis of a framework agreement may be entered into in accordance with the negotiated procedure without prior competition under the conditions laid down in Article 7 9° II.
III. - When contracting on the basis of a framework agreement, the parties may not make substantial amendments to the terms set out in the framework agreement.
The use of framework agreements should not be used in an abusive manner or for the purpose of preventing, restricting or distorting competition.
I. - 1° A dynamic acquisition system is a fully electronic procurement procedure, for common equipment, by which the procuring entity assigns, after competition, one or more contracts to one of the previously selected operators based on an indicative offer.
The dynamic acquisition system is created for a maximum of four years, except in exceptional cases duly justified.
To set up a dynamic procurement system, the procuring entity follows all phases of the open tender.
2° For the purpose of establishing a dynamic acquisition system, the procuring entity:
(a) Publish a notice of competitive appeal stating that it is a dynamic procurement system and indicating the criteria that will be applied for the selection of contract holders entered into under this system;
(b) Specify in the consultation documents the nature of the purchases envisaged under this system as well as all the necessary information regarding the acquisition system, the electronic equipment used and the technical connection modalities;
(c) Provides, electronically, upon publication of the notice and until the expiry of the system, free, direct and complete access to the consultation documents and indicates in the notice the internet address to which these documents can be viewed.
3° The system is open throughout its duration to all economic operators meeting the selection criteria and having submitted an indicative offer in accordance with the consultation documents and any additional documents. Indicative offers can be improved at any time.
The procuring entity shall conduct an evaluation of nominations and indicative offers within a maximum period of fifteen days from the date of their submission. It may extend this evaluation period as long as it does not, in the meantime, undertake any procurement proceedings within the dynamic procurement system that may be of interest to the candidates assessed. The procuring entity shall promptly inform the operators of their admission to the dynamic procurement system or the rejection of their application or their indicative offer.
Adjudicative entities cannot use this system to prevent, restrict or distort competition.
II. - The markets passed through a dynamic acquisition system, known as specific markets, are subject to competition.
1° Before proceeding with this competition, the procuring entity publishes a simplified market notice, inviting all economic operators who would not have already submitted an indicative offer as part of the development of the dynamic procurement system to submit an indicative offer within a period of not less than fifteen days from the date of sending of the simplified notice. The procuring entity shall not compete until it has completed the evaluation of all indicative bids submitted within that time limit.
2° The procuring entity then invites all candidates admitted to the system to submit a final offer for each specific contract to be made within the system. To this end, it sets a sufficient time to submit offers.
3° The most advantageous offer is chosen on the basis of the attribution criteria set out in the notice of appeal published in the development of the dynamic acquisition system. These criteria may, if applicable, be specified in the invitation referred to in 2°.
No charge fees may be charged to economic operators.
I. - For contracts and framework agreements passed in accordance with one of the formalized procedures, the procuring entity shall notify, as soon as it has made its choice on nominations or offers, all other candidates of the rejection of their applications or offers, with a brief indication of the reasons for their rejection.
A period of not less than ten days is met between the date on which the decision to reject is notified to candidates whose offer has not been accepted and the date on which the contract or framework agreement is signed.
In the event of an emergency that fails to meet this 10-day period, this period is reduced in proportions appropriate to the situation.
II. - When the procuring entity decides not to assign the contract or resume the proceedings, it shall inform, as soon as possible, candidates of the reasons for its decision. Upon written request from candidates, the answer is written.
III. - The procuring entity shall, within a maximum period of fifteen days from the date of receipt of a written application, communicate to any excluded candidate who makes the application, the detailed reasons for the rejection of his or her application or offer, and to any candidate whose offer has been rejected for any reason other than those mentioned in Article 29 the characteristics and benefits of the offer being held, as well as the name of the contract or attributes of the agreement.
IV. - The procuring entity may not disclose information that is disclosed:
(a) Would be contrary to the law, in particular would violate industrial and commercial secrecy;
(b) would be contrary to the public interest;
(c) Could undermine fair competition between economic operators.
I. - For contracts giving rise to one of the formalized procedures or to a framework agreement, and for service contracts under Article 9 of an amount equal to or greater than EUR 470 000 HT, the procuring entity shall send for publication, within two months of notification of the contract or framework agreement, a notice of award. The procuring entity is exempt from sending an award notice for contracts based on a framework agreement.
The procuring entity sends an opinion on the outcome of the procurement based on a dynamic procurement system, no later than two months after the notification of each contract.
However, it may only send a global notice each quarter, no later than two months after the end of each quarter.
Notices of attribution are sent for publication in the Official Journal of the European Union, in accordance with the model set by Community Regulation (EC) No 1564/2005 referred to above.
II. - For contracts under Article 9, the procuring entity shall issue a notice of award to the Office of Official Publications of the European Union indicating whether it accepts the publication of the notice.
III. - The procuring entity may, if it asserts the sensitive commercial nature of the market, not mention certain information regarding the number of bids received, the identity of the candidates and the prices.
IV. - When the procuring entity passes a research and development services market through a non-competitive procedure in accordance with 2° of Article 7, it may limit information on the nature and quantity of services provided to the reference "research and development services".
When the procuring entity passes a research and development market that cannot be passed through a non-competitive procedure in accordance with 2° of III of Article 7, it may limit information on the nature and quantity of the services provided when commercial secrecy concerns make this precaution necessary.
In these cases, it ensures that the published information is at least as detailed as those contained in the notice of competitive appeal.
If a qualifying system is used, the procuring entity shall ensure that the information published in the award notice is as detailed as those contained in the statement defined in section 27.
The procuring entities retain for four years all relevant information relating to:
(a) The qualification and selection of economic operators and the award of markets;
(b) The use of procedures without prior competition in accordance with Article 7 II;
(c) The application of the provisions of sections 8 and 27 to 31 of the above-mentioned June 6, 2005.
The procuring entity shall take appropriate measures to be able to provide any information on the conduct of the assignment procedures conducted electronically.
The thresholds mentioned in this decree may be amended by decree.
The new Civil Procedure Code is thus amended:
1° In the first paragraph of Article 1441-1, the words: "in the first paragraph of Article 11-1 of Law No. 91-3 of 3 January 1991 relating to the transparency and regularity of the procurement proceedings and submitting the transfer of certain contracts to the rules of public advertising and competition" are replaced by the words: "at the 1st of Article 24 and at the 1st of Article 33 of Order No. 2005-649
2° In Article 1441-2, the words: "in the second paragraph of Article 11-1 of Law No. 91-3 of 3 January 1991" are replaced by the words: "in the second paragraph of Article 24(1) and in the second paragraph of Article 33 of Order No. 2005-649 of 6 June 2005 on contracts passed by public or private persons not subject to the public procurement code. »
Are repealed:
- 2° of Article 13, 3° and 4° of Article 18 of amended Decree No. 84-74 of 26 January 1984 establishing the status of standardization;
- Decree No. 93-990 of 3 August 1993 on procedures for contracting and contracting in the water, energy, transport and telecommunications sectors;
- Decree No. 2005-254 of 18 March 2005 on the procurement of certain markets.
The contracts and framework agreements for which a consultation has been initiated or a notice of appeal has been sent to the publication prior to the date of publication of this decree remain governed by the provisions of Decree No. 93-990 of 3 August 1993.
The Minister of State, Minister of Interior and Land Management, the Minister of Economy, Finance and Industry, the Minister of Seals, Minister of Justice, and the Minister of Transport, Equipment, Tourism and the Sea are responsible, each with respect to it, for the execution of this Order, which will be published in the Official Journal of the French Republic.
Done in Paris, 20 October 2005.
Dominique de Villepin
By the Prime Minister:
Minister of Economy,
finance and industry,
Thierry Breton
The Minister of State,
Minister of Interior
and landscaping,
Nicolas Sarkozy
The Seal Guard, Minister of Justice,
Pascal Clément
Minister of Transport, Equipment,
tourism and the sea,
Dominica Perben
