Key Benefits:
President of the Republic,
On the report of the Prime Minister and the Minister of Economy, Industry and Employment,
Given the Constitution, includingarticle 38 ;
Considering the Treaty establishing the European Community;
In light of Council Directive 89 / 665 / EEC of 21 December 1989 coordinating the legislative, regulatory and administrative provisions relating to the application of appeal procedures for procurement of public procurement of supplies and works, as amended by Directive 2007 / 66 / EC of the Parliament and Council of 11 December 2007;
In light of Council Directive 92 / 13 / EEC of 25 February 1992 coordinating legislative, regulatory and administrative provisions relating to the application of community rules on procurement procedures of entities operating in the water, energy, transport and telecommunications sectors, as amended by Directive 2007 / 66 / EC of the Parliament and Council of 11 December 2007;
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;
Considering Directive 2004 / 18 / EC of the European Parliament and of the Council of 31 March 2004 on the coordination of procedures for the procurement of public works, supplies and services;
Considering the trade code;
Considering the code of construction and housing;
Considering the general code of territorial authorities;
Considering the Administrative Justice Code;
Considering the labour code;
Vu la Act No. 91-3 of 3 January 1991 on the transparency and regularity of market procedures and subjecting the transfer of certain contracts to advertising and competition rules;
Vu la Act No. 93-122 of 29 January 1993 on the prevention of corruption and transparency of economic life and public procedures, including article 41 thereof;
Vu la Act No. 95-127 of 8 February 1995 relating to public procurement and public service delegations, including article 8;
Vu la Act No. 2008-735 of 28 July 2008 relating to partnership contracts, including article 51;
Vu la Act No. 2009-122 of 4 February 2009 for 2009, including its article 6;
See?Order No. 2005-649 of 6 June 2005 relating to procurement by certain public or private persons not subject to the public procurement code;
See?Order No. 2009-515 of 7 May 2009 relating to appeal procedures for public order contracts;
See?article R. 123-20 Administrative Justice Code;
Considering the opinion of the Standards Advisory Board dated 7 May 2009;
The State Council (Section of Administration) heard;
The Council of Ministers heard,
Order:
Public works concession contracts are administrative contracts whose purpose is to carry out all construction or civil engineering work by a concessionaire whose remuneration consists either in the right to operate the work, or in this law with a price.
The procuring powers under this heading shall be:
1° Private or public law bodies with legal personality, created to meet specific needs of general interest of a non-industrial or commercial nature, not subject to the public procurement code, and placed under the dependence of a procuring authority itself subject to the public procurement code or this order; This dependency of the organization in question is established by the fact that the procuring authority mainly ensures its funding, exercises control over its management or designates the majority of the members of its administrative, managerial or supervisory body;
2° The Bank of France, the Institut de France, the French Academy, the Academy of Registrations and Fine Arts, the Academy of Sciences, the Academy of Fine Arts and the Academy of Moral and Political Sciences;
3° The Caisse des dépôts et consignations;
4° Private law bodies with legal personality and constituted by procuring authorities subject to this ordinance or the public procurement code for certain joint activities.
When a concession contract deals both with services and work, it is subject to this title if its main purpose is to carry out work.
The provisions of this title do not apply:
1° To contracts between a procuring authority and a contracting party on which it exercises control comparable to that exercised on its own services and which carries out the bulk of its activities for it, provided that the contracting party is deteriorating the quality of the procuring power, shall apply, in order to meet its own needs, the contracting rules provided for in this order, by the public procurement code or by theOrder dated June 6, 2005 ;
2° To contracts entered into by a procuring authority with another procuring authority, on the basis of a legal provision taken, of an exclusive right;
3° Contracts requiring secrecy or whose execution is legally subject to specific security measures;
4° To contracts for which the protection of the essential interests of the State requires it;
5° Contracts under the procedure specific to an international organization;
6° Contracts entered into under special procurement rules under an international agreement on the parking of troops;
7° Contracts entered into under specific procurement rules under an international agreement for the realization or joint operation of a project or work;
8° To contracts entered into by a procuring authority in the exercise of a network operator activity defined in sections 26 to 30 of the order of June 6, 2005 referred to above;
9° Contracts with the primary purpose of providing or operating public electronic communications networks, or providing to the public one or more electronic communications services.
In order to ensure the effectiveness of public order and the proper use of public money, the public works concession contracts mentioned in Chapter I respect the principles of freedom of access to public order, equal treatment of candidates and transparency of procedures.
I. - The nature and extent of the needs to be met by public works concession contracts are determined taking into account sustainable development objectives.
II. - The conditions for a concession of public works may include obligations to reconcile economic development, environmental protection and development and social progress in accordance with the objectives of sustainable development.
These obligations, which are set out in the notice of public appeal to competition or in the documents of the consultation, may not result in discriminatory effects on potential candidates.
The procuring power may:
1° Candidates must subcontract to third parties at least 30% of the overall value of the work under the contract;
2° Either invite candidates to indicate in their offers whether they intend to entrust to third parties a share of the work under the contract and, if so, the percentage it represents in the overall value of the work.
The requirement referred to in 1° above or the invitation referred to in 2° shall be indicated in the notice of public competition appeal or in the documents of the consultation.
Public works concession contracts are subject to advertising obligations under the conditions and subject to exceptions defined by regulation.
The bid bans to be issuedsection 8 of the order of June 6, 2005 referred to above applies to public works concession contracts.
Persons sentenced under the 5th of thearticle 131-39 the Criminal Code cannot bid on public works concession contracts
The conditions under which the procuring authority shall notify the other candidates of the name of the attribute and the reasons for the choice of the attribute, as well as those in which public works concession contracts are concluded, shall be determined by regulation.
After Chapter IV of Title I of Book IV of Part I of the General Code of Territorial Communities, a chapter V is inserted as follows:
“Chapter V
“Public works concession contracts
"Art.L. 1415-1.- Public works concession contracts are administrative contracts passed by a local authority or a local public institution whose purpose is to carry out any construction or civil engineering work by a concessionaire whose remuneration consists either in the right to operate the work or in that right with a price.
"Art.L. 1415-2.-When a concession contract involves both services and work, it is subject to this chapter if its main purpose is to carry out work.
"Art.L. 1415-3.-The provisions of this chapter do not apply:
« 1° To contracts between a procuring authority and a contracting partner on which it exercises control comparable to that exercised on its own services and which carries out the bulk of its activities for it, provided that the contracting partner is detaching the quality of the procuring power, is applying, in order to meet its own needs, the rules of contracting under the Public Procurement Code, by theOrder No. 2005-649 of 6 June 2005 relating to procurement by certain public or private persons not subject to the public procurement code or the provisions of this chapter;
« 2° To contracts entered into by a procuring authority with another procuring authority, on the basis of a legal provision taken, of an exclusive right;
« 3° Contracts requiring secrecy or whose execution is legally subject to specific security measures;
« 4° To contracts for which the protection of the essential interests of the State requires it;
« 5° Contracts under the procedure specific to an international organization;
« 6° Contracts entered into under specific procurement rules under an international agreement for the realization or joint operation of a project or work;
« 7° Contracts concluded by a local authority or public institution in the exercise of a network operator activity within the meaning of thearticle 135 the public procurement code;
« 8° The principal purpose of contracts is to provide or operate public electronic communications networks or to provide one or more electronic communications services to the public.
"Art.L. 1415-4.-In order to ensure the effectiveness of public order and the proper use of public money, public works concession contracts respect the principles of freedom of access to public order, equal treatment of candidates and transparency of procedures.
"Art.L. 1415-5.-I. ― The nature and extent of the needs to be met by public works concession contracts are determined taking into account sustainable development objectives.
“II. ― The conditions for a concession of public works may include obligations to reconcile economic development, environmental protection and development and social progress in accordance with the objectives of sustainable development.
"These obligations, which are set out in the notice of public appeal to competition or in the documents of the consultation, cannot result in discriminatory effects on potential candidates.
"Art.L. 1415-6.-The territorial community or local public institution may:
« 1° Candidates must subcontract to third parties at least 30% of the overall value of the work under the contract;
« 2° Either invite candidates to indicate in their offers whether they intend to entrust to third parties a share of the work under the contract and, if so, the percentage it represents in the overall value of the work.
"The requirement referred to in 1° or the invitation referred to in 2° shall be indicated in the notice of public appeal to competition or in the documents of the consultation.
"Art.L. 1415-7.-The procurement of public works concession contracts is subject to advertising obligations under the conditions and subject to exceptions defined by decree in the Council of State.
"Art.L. 1415-8.-The prohibitions to bid pursuant to Article 8 of Order No. 2005-649 of 6 June 2005 relating to the contracts contracted by certain public or private persons not subject to the Public Procurement Code apply to public works concession contracts.
"People sentenced under the 5th of thearticle 131-39 the Criminal Code cannot bid on public works concession contracts.
"Art.L. 1415-9.-The conditions under which the local authority or local public institution shall notify the other candidates of the name of the attribute and of the reasons leading to the choice of the attribute, as well as those in which the public works concession contracts are concluded, shall be provided by decree in the Council of State. »
I.-The provisions of this title shall apply to contracts of work with a third party by the public works concessionaire for the purposes of the performance of the concession contract with a procuring authority subject to the public procurement code or title I of this order.
II. - These contracts are subject to:
1° The public procurement code when the concessionaire is a public person subject to this code;
2° A lOrder of June 6, 2005 referred to when the concessionaire is a procuring power referred to in section 2 of this order;
3° In this case, where the concessionaire does not report to the 1st or 2nd of the above.
III. ― are not considered as a third party the economic operators who have grouped themselves to obtain contracts of concessions of public works, nor the companies that are related to them.
A related company means any company on which the concessionaire can exercise, directly or indirectly, a dominant influence, any company that can exert a dominant influence on the concessionaire, or any company that, like the concessionaire, is subject to the dominant influence of another company due to the ownership, financial participation or the rules governing it. The dominant influence is presumed when a company, directly or indirectly, holds the majority of the capital subscribed to by another company, has the majority of the votes attached to the shares issued by it, or may designate more than half of the members of its administrative, management or oversight body.
The principles set out in Article 5 of this Order, the exceptions referred to in Article 4 and the prohibitions to bid under Article 9 shall apply to the contracts referred to in Part 3 of Article 12.
The contracting of work referred to in 3° of II of Article 12 is subject to advertising obligations under the conditions and subject to exceptions defined by regulation.
The procuring authority may impose on the concessionaire under 1°, 2° or 3° of Article 12 to subcontract to third parties a percentage not less than 30% of the overall value of the concession work. This minimum percentage shall be indicated in the concession contract.
When a breach of advertising and competition obligations is invoked to which the procurement referred to in 3° of II of Article 12 is subject, they shall, if they fall under private law, be subject to Articles 5 to 10 the order of May 7, 2009 referred to above. If they constitute administrative contracts, they are subject to the articles L. 551-5 to L. 551-12 Administrative Justice Code.
I. ― In the b of section 41 of the law of January 29, 1993 referred to above, after the words: "when this service is entrusted to a public institution" are inserted the words: "on which the public person exercises control comparable to that exercised over his or her own services and which carries out the essentials of his or her activities."
II. ― In the b of Article L. 1411-12 of the General Code of Territorial Communities, after the words: "when this service is entrusted to a public institution" are inserted the words: "on which the public person exercises control comparable to that exercised over his or her own services and which carries out the bulk of his or her activities for him or her."
In the second paragraph of Article 8 of the above-mentioned Act of 8 February 1995, after the words: "concluded by the State" are inserted the words: "or its public institutions other than those of an industrial and commercial character".
In II of section 6 of the above-mentioned Act of 4 February 2009, the words: "or a contract governed by articles 9 and 11 of Act No. 91-3 of 3 January 1991 relating to the transparency and regularity of the procurement proceedings and subjecting the transfer of certain contracts to rules of advertisement and competition or to article 1 of Decree No. 92-311 of 31 March 1992 subjecting to
Section 8 of Order No. 2005-649 of 6 June 2005 referred to above is amended as follows:
1° The 1° is replaced by the following:
« 1° persons who have been subject, for less than five years, to a final sentence for one of the offences provided for in sections 222-38, 222-40, 313-1 to 313-3, 314-1 to 314-3, 324-1 to 324-6, 421-2-1, by the second paragraph of article 421-5, by article 433-1, paragraph »
2° At 2°, after the words: "to articles", the words: "L. 324-9, L. 324-10, L. 341-6, L. 125-1 and L. 125-3" are replaced by the words: "L. 8221-1, L. 8221-3, L. 8221-5, L. 8231-1, L. 8241-1 and L. 8251-1";
3° The 3° is replaced by the following:
« 3° Persons subject to the judicial liquidation procedure provided for in Article L. 640-1 of the Commercial Code, natural persons whose personal bankruptcy was pronounced pursuant to Articles L. 653-1 to L. 653-8 of the same Code and persons subject to an equivalent procedure governed by a foreign law. Persons admitted to the judicial recovery procedure established by Article L. 631-1 of the Commercial Code or to an equivalent procedure governed by a foreign law must justify that they have been authorized to continue their activities during the foreseeable period of performance of the market; »
4° In the first paragraph of the 4th, the words "in previous paragraphs" are replaced by the words "in this paragraph".
The building and housing code is thus modified:
1° In the last paragraph of Article L. 313-33, the words: "under Part II of Act No. 91-3 of 3 January 1991 on the transparency and regularity of contract procedures and subjecting the procurement of certain contracts to rules of advertising and competition" are replaced by the words: "in Order No. 2005-649 of 6 June 2005 on contracts passed by certain public or non-public procurements"
2° In the last paragraph of section L. 313-34, the words: "under title II of Act No. 91-3 of 3 January 1991 referred to above" are replaced by the words: "in Order No. 2005-649 of 6 June 2005 on contracts passed by certain public or private persons not subject to the public procurement code".
Until 30 November 2009, when a breach of advertising and competition obligations under this Order is invoked, the following provisions apply:
I. ― If it is an administrative contract, the procedure defined in theArticle L. 551-1 of the Administrative Justice Codein its writing applicable to the effective date of this order.
II. ― If the contract falls under private law, any person who has an interest in finding it and may be adversely affected by the alleged breach may request the judge to take, prior to the conclusion of the contract, interim measures to order the legal person responsible for the breach to comply with his or her obligations and, if necessary, to suspend the contracting procedure or the performance of any decision related to it. It may also request that such decisions be cancelled and that the provisions or requirements for inclusion in the contract be deleted and that ignore the obligations referred to in the first paragraph.
The application may also be submitted by the public prosecutor when the Commission of the European Communities notified the State of the reasons why it considers that a clear and manifest violation of the obligations mentioned above has been committed.
The application shall be brought before the President of the Judiciary of the Judiciary of the Judiciary of the Judiciary of the Judiciary of the Judiciary of the Judiciary of the Judiciary of the Judiciary of the Judiciary of the Judiciary of the Judiciary of the Judiciary of the Judiciary of the Judiciary or the Judiciary of the Judiciary of the Judiciary.
The obligation to disclose statistical information, under conditions prescribed by regulation, is that the procuring authorities and procuring entities passing contracts for the performance of work, the delivery of supplies or the provision of services, with an economic counterpart constituted by a price or right of operation.
This information includes the performance of small and medium-sized enterprises by the holders of these contracts.
The Administrative Justice Code is amended as follows:
1° Article L. 551-22 becomes Article L. 551-24;
2° In subsection 2 of section 2 of chapter I, title V of Book V, after section L. 551-21, two articles are inserted as follows:
"Art.L. 551-22.-The amount of the financial penalties provided for in sections L. 551-19 and L. 551-20 shall take into account proportionately their deterrent object, without being able to exceed 20% of the tax-free amount of the contract.
"The amount of these penalties is paid to the Public Treasury.
"Art.L. 551-23.-The President of the Administrative Court or his delegate shall rule first and last in the form of the references. »
After Article L. 211-13 of the Code of the Judicial Organization, an article L. 211-14 is inserted as follows:
"Art. L. 211-14. - Specially designated courts of large instance are in dispute with respect to the obligations of advertising and competition to which the procurement of private law contracts under the public order is subject in the cases and conditions provided for in articles 2 to 20 of Order No. 2009-515 of 7 May 2009 relating to the appeal procedures applicable to public order contracts. »
Sections 9, 11, 11-1 and 11-2 and the second paragraph of section 14 of the above-mentioned Act of 3 January 1991 are repealed.
I. ― The provisions of Parts I and II of this Order apply to public works concession contracts for which a notice of public tender is sent or a consultation commenced from the date of entry into force of this Order.
II. - Except for section 16, the provisions of title III apply to the contracts of work passed by the concessionaire and for which a notice of public tender is sent or a consultation commenced from the date of entry into force of this order;
III. ― The provisions of section 16 apply to contracts of work passed by the concessionaire for which a notice of public tender is sent or a consultation commenced on or after December 1, 2009.
IV. ― The provisions of section 21 apply to draft contracts submitted toOrder dated June 6, 2005 for which a notice of public appeal to competition is sent or a consultation commenced from the date of coming into force of this order.
V. ― The provisions of 2° of Article 24 and Article 25 shall apply to draft contracts for which a notice of public appeal to competition is sent or a consultation commenced from 1 December 2009.
The Prime Minister, Minister of State, Minister of Justice and Freedoms, Minister of Economy, Industry and Employment, Minister of the Interior, Overseas and Territorial Authorities, and Minister of Budget, Public Accounts, Public Service and State Reform are responsible, each with respect to it, for the application of this Order, which is published in the French Journal.
Done in Paris, July 15, 2009.
Nicolas Sarkozy
By the President of the Republic:
The Prime Minister,
François Fillon
Minister of Economy,
industry and employment,
Christine Lagarde
The state minister, keep seals,
Minister of Justice and Freedoms,
Michèle Alliot-Marie
The Minister of the Interior,
the overseas and territorial authorities,
Brice Hortefeux
Minister of Budget, Public Accounts,
Civil Service
and state reform,
Eric Woerth
