Key Benefits:
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 to Ministers and Ministers Delegates, Ministers and Ministers, Ministers and Ministers of State, High Commissioner (copy to Ladies and Gentlemen, Prefects, Ladies and Gentlemen)
Amendments1 made to the law of public order since 2006 and, in particular, the raising of the thresholds for public procurement and the reduction of the procurement procedures under the economic stimulus plan, as well as the institution in 2009 of the new contractual referee, necessitated a recast of the circular of April 3, 2006.
Like the previous one, this new circular has no regulatory scope. It is only, as its name suggests, a guide of good practices for the use of public buyers, for the exercise of their new freedoms.
Circular NOR: ECOM0620004C dated 3 August 2006 for the application of the public procurement code is repealed.
Warning
1. Provisions applicable
certain contracts in the field of defence
Public markets and framework agreements on weapons, ammunition and war materials are, in principle, subject to all provisions of the public procurement code. However, where the provisions of Articles L. 111-1, L. 111-2, L. 2141-1, L. 2141-2 and L. 2141-3 of the Defence Code apply, the contracts are subject to Decree No. 2004-16 of 7 January 2004 taken under Article 4 of the Public Procurement Code.
The contracts included within the scope of the decree of 7 January 2004 must meet the following criteria:
― questioning the essential interests of security the State within the meaning of Article 296 of the Treaty establishing the European Community;
- to carry weapons, ammunition or war materials;
– to be passed for the exclusive defence needs.
When the contract or framework agreement enters the scope of this decree, the procuring authority is free to apply it or not to apply it.
The Public Procurement Code applies, in the absence of a specific provision of this Order. To this extent, the defence markets therefore enter the scope of this guide.
2. Amount of procedural thresholds
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 to meet the international commitments of the Union under the plurilateral Agreement on Public Procurement of the World Trade Organization.
This agreement provides for thresholds expressed in special drawing rights (SDRs). The SDR is a basket of currencies (euro, US dollar, yen). Therefore, the thresholds of the guidelines expressed in euros must be revised regularly to reflect the change in currency prices.
At the date of the publication of this circular, the thresholds are those resulting from the decree 2007-1850 of 29 December 2007 either for the supply and services markets, €133,000 HT for the State, €26,000 HT for the territorial authorities. They are €412,000 HT for procuring entities. For work markets, the threshold is €5,150,000 HT.
As of January 1, 2010, these thresholds are for supplies or services markets: 125,000 euros HT for the State, 193,000 euros HT for the territorial authorities and 387,000 euros HT for the procuring entities. For labour markets: 4,845,000 euros HT.
It is recalled that pursuant to the provisions of the general code of territorial authorities (CGCT) in respect of acts subject to the rule of law of the representative of the State (art. L. 2131-2, L. 3131-2, L. 4141-2), Decree No. 2008-171 of 22 February 2008 on the threshold provided by the general code of territorial authorities for certain provisions applicable to public procurement and framework agreements2 has set at 206 000 HT the amount from which public markets and framework agreements are subject to the control of the representative of the State. This threshold is reduced to 193 00 € HT effective 1 January 2010.
3. To go further
The Department of Legal Affairs of the Ministry responsible for the economy maintains on its website3 documents developed within the framework of the Observatoire économique de l'achat public, of which it operates with professionals. These documents may be usefully consulted with the good practices guides developed in the context of the "Workshops" of the Economic Observatory for Public Procurement or the guides and recommendations of the Groups of Market Studies (GEM). The latter, in particular, are developed within the framework of the partnership between the Directorate and the State Procurement Service, which it provides legal support.
PART I
THE CHAMP D'APPLICATION - LE CONTRAT ENVISAGÉ EST-IL
A PUBLIC MARKET SUBMITTED TO THE PUBLIC MARKET CODE?
The buyer will know whether to apply the public procurement code, when he has answered the following three questions:
is he a person subject to the public procurement code?
– Is the contract he envisages a public market?
– Does this public market enter the field of exceptions provided by the code?
1. Who must apply the public procurement code?
1.1. Public persons submitted
the Public Procurement Code and their Agents
The public procurement code applies to the state and its administrative public institutions4. The Public Procurement Code also applies to local authorities and local public institutions, whether administrative or industrial and commercial in nature, but not to its industrial and commercial public establishments that are subject to the regime established by the order of June 6, 2005 Order No. 2005-649 of June 6, 20055.
When these persons are qualified as procuring authorities, their purchases are governed by the first part of the code. When these people intervene as a network operator, they are referred to as procuring entities subject to specific rules applicable to their purchases (Part II of the Code). The regime applicable to them is commented in Part Five.
Public health institutions are subject to some specific provisions (no commission of tenders, special payment times). Inter-hospital unions are subject to the same regime as health institutions by the Public Health Code.
1.2. Some private individuals
Private individuals do not, in principle, fall within the scope of the public procurement code.
In other cases:
(a) When a private person acts, pursuant toArticle 1984 of the Civil Code, as an agent of a public person subject to the Public Procurement Code, it shall, for the contracts that have been carried out under this mandate, comply with the provisions of the Public Procurement Code.
(b) 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.
It will be noted that an association, a legal entity of private law, when it is only a "false" of the administration and must be subsequently considered a transparent association, must apply the rules of the public order.
1.3. Other public persons
1.3.1. Some public or private individuals, 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.
1.3.2. Social security organizations apply the provisions of the Public Procurement Code, under theArticle L. 124-4 of the Social Security Code and the June 16, 2008 Regulation on the Markets of Social Security Institutions7.
1.3.3. The markets passed by 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 have a double regime. Procurement for the conduct of their research activities is under the responsibility ofOrder No. 2005-649 of 6 June 2005 8 (cf. art. 30 of Program Law No. 2006-450 of 18 April 2006 for research). However, as permitted in Article 3.II of this Order, these provisions do not hinder the possibility, for the procuring authorities, of voluntarily applying, for a particular market, the rules set out in the Public Procurement Code. This choice can be manifested by the explicit reference to the articles of the code in the consultation documents and the contract documents of the market. Other purchases are subject to the public procurement code.
2. Is the contract considered a public market?
Section 1 of the code defines the public market.
2.1. A public market is a contract that needs to be met
of Supplies, Services and Work
The purpose of the market is a fundamental element that needs to be accurately defined in order to meet a need of the public.
Public markets are contracts devoting the will agreement between two persons with legal personality. A unilateral decision cannot be a market, provided it does not conceal a contract. To Article 2 of Act No. 2001-1168 of 11 December 2001 with urgent economic and financial measures9, contracts subject to the public procurement code are administrative contracts.
2.2. A public market is concluded on an expensive basis
Benefits must be made in return for compensation paid by the public person. The contract may be a public service delegation, if the remuneration is substantially related to the results of the operation. It is then subject to the regime provided for by the Act No. 93-122 of 29 January 1993 amended on the prevention of corruption and transparency of economic life and public procedures10.
In most cases, the contract will result in the payment of a sum of money. As long as the administration benefits from benefits and the sum can be considered as their counterparty, it is a price, regardless of the qualification given to it: a grant can be re-qualified in price and the contract in market. The price is not necessarily paid by the buyer. The expensive character can, in fact, result from a abandonment by the public purchaser of a recipe born on the occasion of the execution of the market. This will, for example, be the authorisation given to the contractor to operate advertising panels on the public domain, by paying for advertising revenues derived from them, or by the authorization given to the contractor to sell sand or gravel from a watercourse, of which he conducted the curage.
The benefits that the public person obtains on a free basis cannot constitute public contracts since there is no payment of a price.
2.3. A public market can be passed
with public or private persons
A contract is signed between two distinct persons, each with a legal personality. A public entity may apply to 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 and that of freedom of competition. The public person, who submits, must therefore be able to justify, if any, that the proposed award has been determined, taking into account all 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.
Public contracts differ from other contracts: public service delegations, sales contracts in the future state of completion, administrative emphyteotic leases, etc.13
3. What are the exclusions from the application field
Public procurement code?
The provisions of the code do not apply to contracts on the list of exclusions in section 3 of the code. If a buyer makes use of one of these cases, it is not subject to any of the code règes. These exclusions are as follows:
3.1. Integrated benefits of quasi-regia14 (art. 3 [1°])15
This exclusion concerns all contracts of supply, work or services between two distinct legal entities, but one of which may be viewed as the administrative extension of the other. It is a result of community jurisprudence (18 November 1999, case C-107/98, Teckal Srl v Comune di Viano and Azienda Gas-Acqua Consorziale (AGAC) di Reggio Emilia, v. C-107/98). Two features describe the integrated service:
– the control of the contractor by the public person must be similar to that exercised on his or her own services, which implies a decisive influence on his or her strategic objectives and important decisions (a mere relationship of guardianship is not sufficient);
―the contractor must perform the bulk of his activity for the public person who controls it; the share of activities carried out for the benefit of others must remain marginal.
The participation, even a minority, if it is real, of a private enterprise in the capital of a society in which the procuring power also participates, excludes that this procuring power can exercise control over that society similar to that exercised over its own services (CJCE, January 11, 2005, Stadt Halle, C-26/03). Private EMSs must therefore be competitive with other providers for the procurement of a public market.
Community jurisprudence (CJCE, April 19, 2007, Asemfo, C-295/05) and administrative jurisprudence (Council of State, March 4, 2009, National Union of Health Information Industries (SNIIS), No. 300481) admit that public control over the co-contractor can be exercised jointly by several procuring authorities. These are then considered collectively to exercise control comparable to that exercised on their respective services. In this case, it is not necessary to examine the actual level of control of each of the procuring powers over the controlled entity (CJCE, April 19, 2007, Asemfo, above). A similar control can therefore be agreed with joint control. Where applicable, such control may also be exercised by a statutory body specific to the public community, with a collegial and majority character (CJCE, November 13, 2008, Coditel, C-324/07).
As a result of the implementation of the " quasi-regia" regime, the contractor applies all the rules of the public procurement code or the order of June 6, 2005 to meet its own needs. If it is not legally submitted, it must voluntarily submit to it, so that the " quasi-regia" exclusion is invocable.
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 contractor to be entrusted by a procuring power directly, i.e. without formality of advertising or competition, a service delivery. When an exclusive right is entrusted to several operators, one speaks of special law. The conditions of validity of these special rights are the same as those of exclusive rights.
This right must be the result of a legislative or regulatory text that, when it assigns this right, also defines the mission of general interest entrusted to the partner and specifies the obligations imposed on him. The content, duration and limitations of the service must be precisely defined. This right cannot, in any case, be granted by the contract itself.
This text must be prior to the contract.
The conditions for the validity of an exclusive right are:
The exclusive right must be necessary and proportionate to the exercise of a general interest mission entrusted to the contractor.
When the services of general economic interest (SIEG) are involved, i.e. "market service activities fulfilling missions of general interest and therefore submitted by Member States to specific obligations of public service", the exclusive right is justified if, in its absence, its beneficiary would not be able to fulfill the particular mission that was entrusted to it (e.g.: CJCE 19 May 1993-3)
In other cases, the 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 on the dual condition that the restrictions to these rules be appropriate to ensure the objective that they aim 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 service mission of general economic interest, justifying the exclusion or restriction of competition in the services markets in question (e.g.: Council of State, 26 January 2007, Trade union professional de la géomatique, n° 276928).
If the exclusive right creates a dominant position in the service market in question, within the meaning of Article 82 of the EC Treaty andArticle L. 420-2 of the Commercial Code, it must not cause the beneficiary to abuse it.
3.3. Programme contracts
(art. 3 [6°])
This exclusion concerns only service markets.
It applies only to programs that deal with research and development projects, without direct industrial extension. Simple study markets do not fall into this category.
Contracts for research and development programs are excluded from the scope of the code:
- if the procuring power only partially funds the program;
– or if it does not acquire the exclusive ownership of program results.
Only therefore constitutes a public market subject to the code, the contract in which the procuring power is required to acquire the full ownership of the results of the research program and to ensure the full funding of the research program.
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°])
The requirement of secrecy that justifies the exclusion provided for in the 7th of Article 3 of the Public Procurement Code concerns only the protection of secrecy, as well as information or interests relating to national defence, public security or State security.
This is, for example, 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, access sensitive information or areas, whose disclosure could affect the security and safety of the State and its scientific and economic potential.
In the field of national defence and other cases of application of the decree of 7 January 200416 such contracts may, inter alia, concern:
- contracts for the preparation and execution of the missions of the armed forces engaged in external operations and meeting critical requirements for the safety, effectiveness of forces or compliance with international commitments;
- contracts for the benefit of the armed forces, when they have received a one-off mission of national interest, 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.
Specific provisions on secrecy protected in the contracts concerned by this exclusion are contained in the Order of 18 April 2005 on conditions for the protection of secrecy and information concerning national defence and the security of the State in the contracts.
3.5. Other exclusions
- the acquisition or lease of real property, including buildings, as long as they are existing, or real property rights;
- contracts for programs to be broadcast by broadcasting organizations and markets for broadcast times;
- the financial services contracts relating to the issuance, purchase, sale and transfer of securities or other financial instruments and the procurement of money or capital from the procuring authorities, as well as the services provided by the central banks;
- contracts passed in a procedure specific to an international organization;
– the contracts passed under an international agreement on the parking of troops;
- contracts passed pursuant to a procedure provided for by an international agreement, with a view to the realization or joint operation of a project or work;
- the purchase of works or art objects;
- contracts of services, relating to arbitration and conciliation:
- employment contracts;
- contracts primarily for the provision or operation of public electronic telecommunications networks or the provision of electronic communication services to the public.
PART II
THE PREPARATION OF THE PROCEDURE
4. How should the buyer determine its needs?
4.1. Why should we 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 carry out an accurate definition of needs upstream. From this essential pre-phase depends on the choice of procedure and the subsequent success of the market.
For example, it was considered to be breaches of the definition of needs: the underestimation of the quantities of the market (EC 29 July 1998 Commune de Léognan, n° 190452), the reference of the definition of certain needs to a subsequent device (EC 8 August 2008, Région Bourgogne, n° 307143), the possibility for candidates to propose "additional services" not defined (EC 15 December 2008, Dunkerque Urban Community, n° 313).
A good needs assessment and, consequently, a very precise definition of needs in advertising documents are not just a legal requirement. They are an imperative condition for the purchase to be made in the best economic conditions. For example, the purpose of the market cannot be reduced to the only mention: "Computer Benefits".
For the purpose of the procuring authority, it is understood not only the requirements related to its own operation (e.g., purchases of office supplies, computers for its agents, insurance benefits for its premises, etc.), but also the needs related to its general interest activity and which lead it to provide services to third parties (e.g. school transport markets).
The definition of needs must take into account the requirements of sustainable development and, in particular, social and environmental requirements. These requirements can be apprehended by reference to labels.
To be effective, the expression of needs is based on:
- analysis of the functional needs of services on the basis, for example, of consumer status;
― the knowledge, as detailed as possible, of supplier markets, which can rely, for example, on the participation of the buyer in professional trade shows or on 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 associated with the use of the property or equipment purchased. As such, the procuring power can take into account sustainable development concerns.
The objectives to be achieved or the means to achieve them may not be entirely determinable. The buyer can then use the competitive dialogue procedure.
When uncertainty concerns the quantity or extent of the needs to be met, the purchaser may use the purchaser's purchaser's purchaser's purchaser's purchaser's purchaser's purchaser's purchaser's purchaser's purchaser's purchaser's purchaser's purchaser's purchaser's purchaser's purchaser's purchaser's purchaser's purchaser's purchaser's purchaser's purchaser's purchaser's purchaser's purchaser's purchaser' purchaser's purchaser's purchaser's purchaser's purchaser's purchaser's purchaser's purchaser's purchaser's purchaser's purchaser's purchaser's purchaser's purchaser's purchaser's purchaser' purchaser' purchaser's purchaser's purchaser's purchaser's purchaser's purchaser' purchaser's purchaser's for purchaser's purchaser's purchaser's purchaser's purchaser's purchaser' purchaser's purchaser's purchaser's These markets also allow time planning the needs to be met or to spread the purchase over time,
It is based on an exact definition of needs that the buyer defines the object of the market.
4.2. Possibility of requesting benefits
possible additional
The procuring authority may request candidates to propose, in their offer, additional benefits, that they reserve the right to order or not. These services must be directly related to the subject-matter of the market and the specifications must accurately define their technical specifications.
When the procuring authority provides benefits that applicants must necessarily provide in their offer as a supplement to the basic offer, they are taken into account in the comparative evaluation of the offers. If the procuring authority does not require candidates to provide these benefits, it can only take the basic offer in its comparative assessment.19 In this case, only the additional benefits proposed by the successful candidate under his or her basic offer may be raised by the procuring authority.
The choice to retain any additional benefits is made before the contract is signed.
4.3. What to do when defining needs
or means to satisfy them is impossible?
The definition of needs may be more or less accurate, depending on the buyer's visibility. It may happen that a procuring power is unable to define the means to meet its needs. In this case, the Code provides for the use of framework agreements or purchase orders contracts, which allow for the identification of needs as they arise.
When the procuring power relies on the competitive dialogue procedure, it is not required to write a complete or final terms of reference. In practice, the purchaser will be able to draft an act of commitment, at least one offer of prizes, and the main elements of the specific administrative clauses. The focus of the dialogue will be on the specific technical clauses. Section 67 of the code states that the consultation is then launched on the basis of the project thus partially defined or functional program. The functional programme is intangible. Article 11 states, in fact, that "for markets that have been contracted according to formalised procedures, the act of engagement and, where applicable, the specifications are the constitutive documents. »
For certain contracts and service framework agreements, if the benefit to be performed is of such nature that the market specifications cannot be established beforehand with sufficient precision, to allow the use of the tender, the market may also be passed according to the procedure negotiated with advertising and competition, on the basis of a specification or a partially defined project.
However, in the other formalized procedures, the drafting of a specification before the initiation of the procurement procedure is an obligation.
In a suitable procedure, the drafting of a specification is not mandatory, but needs must have been defined with sufficient precision. This is translated into practice by the drafting of a document which, if any, may be succinct. The public purchaser must communicate to the candidates the useful information he may have.
4.4. The needs must be determined
by reference to technical specifications
The procuring power must define its needs, using specific specifications. These specifications are technical requirements, which 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:
- refer to standards or other pre-established documents approved by recognized bodies, including by professional bodies in consultation with national or community public authorities. This is European technical accreditation, a common technical specification or a technical repository. The 28 August 2006 decision on the technical specifications of the contracts and framework agreements defines these terms20;
― express 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 or 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 protection requirements, including by referring to ecolabels.
Technical specifications shall, in no case, affect the equality of candidates. This is why they cannot mention a specific brand, patent, type, origin or production, which would either promote or deviate certain products or productions. In particular, it is prohibited to use a mark to formulate a technical specification. The public purchaser may, however, use it exceptionally when it is impossible to provide a specific technical description of the subject matter of the market and the express condition that these references be accompanied by the reference "or equivalent"21.
4.5. Use of variants
The regime of the variant is defined in Article 50 of the Public Procurement Code. The variant is an equivalent and alternative offer to the basic solution proposed by the candidate. It may consist of an amendment to some of the technical specifications described in the terms of reference or, more generally, in the consultation file. It can also consist of the development of market financial conditions.
The variant allows candidates to propose to the procuring authority a solution or means to perform the services of the market, other than those set out in the specifications. It can, for example, be a different solution than that provided by the procuring power, innovative if any, or unknown means of the procuring power and which are likely to constitute a better performance, possibly at a better price. Thus, it does not set out the modalities for the implementation of complex projects from the consultation stage.
Variants may, in particular, modify the basic technical solution (e.g. material change with at least equivalent performance), relate to the duration of execution or have a purely financial interest. The procuring power will therefore have any interest, especially in the technical or rapid development fields, to use the possibility of variants, without imposing routine solutions, thus promoting the innovation and access of new companies to public markets.
The introduction of variants makes the examination of offers more complex and their comparison. For this reason, section 50 of the Public Procurement Code requires, in formalized procedure, that the consultation documents mention the minimum requirements that variants must meet, as well as the terms and conditions of their presentation. Under these conditions, it is a question of defining the elements on which they may relate or specify the elements of the terms of reference that they must necessarily respect. The identification and mention of the minimum requirements that variants must meet, if not required in the appropriate procedure, are not less recommended, in order to facilitate the comparison of offers.
The regime of variants is not the same in formalized procedures, governed by Community law, and in appropriate procedures, governed by national law, less restrictive.
In formalized procedures, variants must be expressly authorized by the procuring authority. If there is no indication to allow them in the notice of advertisement or in the consultation documents, they are prohibited. However, in the appropriate procedural markets, the variants are, in principle, allowed.22 unless the procuring authority expressly prohibits them in the notice of public competitive appeal or the documents of the consultation.
Variants must always be deposited with the basic offer. An offer limited to the variant and which does not have a basic offer, must be rejected as irregular.
The filing of a variant, where it is not authorized (formalized procedures) or where it is expressly prohibited (adapted procedures), must lead to its rejection, without its examination. The associated basic offer may, on the other hand, be accepted but provided that it is complete, well individualized, distinct from the variant and consistent with the specifications.
If the procuring authority decides to limit the number of variants allowed, the filing of a higher number makes all variants irregular and must lead to their rejection, without their examination. In fact, it is not up to the procuring authority to replace the candidate in order to determine, among all proposed variants, those that should be retained or excluded, in order to comply with the maximum number of authorized variants.
Basic offers and variants are judged according to the same criteria and in the same manner. These must be fixed so that they can take into account the expected advantages of opening to variants. The criteria set out in the notice of public appeal to competition or in the consultation documents will, in fact, apply to the basic offer and variants. In order to be able to assess the variants in relation to these criteria, the consultation regulations should mention, not only the documents to be produced under the basic solution, but also the documents necessary to assess the interest of the variants.
4.6. Who defines needs?
Community law does not concern itself with the organization of procuring powers.
It follows that the terms and conditions for the designation of persons responsible for the implementation of market procedures, their competences or the regime of delegations of power or signature are exclusively governed by their organic or statutory texts, or are left, in the absence of such texts, to the free choice of the procuring power.
It is up to each procuring authority to choose within the framework of its purchase policy, to what level these different needs must be appreciated. This assessment must respect the objectives and competition rules: the free choice of the level of determination of needs is a flexibility of management. It is distinct from the level at which the trigger thresholds of the procedures are appreciated. A department, territorial authority or public institution may decide that their needs will be defined at the branch or service level, but the level of appreciation of the thresholds remains that of the public person.
It is prohibited any cutting, which would artificially reduce the amount of the markets passed as a result of the needs defined at levels that do not correspond to the actual functioning of the procuring power. Such cross-cutting irregularly subtracts 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 persons have an exclusively administrative and functional role. They choose the appropriate procurement procedure, with regard to the contracting thresholds and carry out the procedure chosen under their responsibility. If necessary, the assessment of the level of needs may have been made before and outside them by the procuring authority, in accordance with the organisational rules that are specific to it.
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 at which the supplies, services and work of the deconcentrated services under his authority will have to be taken into account. Individuals placed under the authority of the public purchaser may then be designated for the implementation of procedures to meet these needs.
For the central services of the State and reserve of the Ministry of Defence for which the decree of 29 March 200723 establishes a particular regime, the Decree No. 2005-850 of 27 July 2005 relating to the delegations of signature of the members of the Government defines the regime of the delegations applicable to public procurement, without the need to take a formal act.
For local authorities, it is the responsibility of the local executive to define the level to which needs are appreciated.
5. Precisions on evolution
the role of tender commissions
For the State, its public institutions and public health, social and mediocial institutions, the obligation to establish tender commissions has been abolished by Decree No. 2008-1355 of 19 December 2008 on the implementation of the economic recovery plan in public markets24. The code thus leaves total freedom to the public authorities concerned, to set up the organization to maximize the effectiveness of their purchases.
The public purchaser may choose to establish a collegial advisory body. It is free to decide on the composition of this commission, depending on its needs and market characteristics.
In the case of local authorities, the establishment of tender commissions is always mandatory, when a formalized procedure is implemented: it is not mandatory in the appropriate procedure. The deletion, by Decree No. 2008-1355 of 19 December 2008 the implementation of the economic stimulus plan in public markets, the intermediate threshold for public works markets, therefore, exempts these communities from the obligation to consult this commission, the amount of the labour market does not exceed 5,150,000 euros HT. Nevertheless, given the particular role played by this commission and the importance of the amount of some of these markets, particularly in the context of the budgets of most of the communities in question, it may be appropriate for them to continue to seize and consult the tender board, even below the threshold for the initiation of formalized procedures.
On the other hand, if the convening of a collegial training with a power of opinion is always possible, when it is not required by the texts, it is not possible to entrust it with responsibilities under the provisions of the public procurement code or other texts, other authorities because the rules of jurisdiction are of public order. Thus, a tendering board may give a notice but may not award a contract passed in a suitable procedure, such jurisdiction falls within the procuring authority or its representative.
In the case of order groupings (art. 8 of the CMP), the grouping's tendering board is constituted only in the case of a territorial community being part of the grouping. When the group is predominantly composed of local authorities, the tender board assigns the market.
When territorial authorities are not majority, the commission has only a simple power of opinion.
6. Buy alone or bundled?
Public buyers can, make the choice either to buy alone, to group or to use a purchasing power plant. This choice must be guided by a more favourable price and management costs.
6.1. Order coordination
Order coordination allows a procuring authority to coordinate procurement of its services (art. 7 CMP). Coordination is possible both for the conclusion of a public market, and for the conclusion of a framework agreement.
A centralizing service may, for example, be designated to conclude the framework agreement in which each service may either conclude its own market or issue purchase orders in the terms fixed by the market past by the centralizing service. A ministry can therefore pass a market or a framework agreement at the central level, on its behalf and that of various State services. In order to facilitate the coordination of procurement between a central government and its deconcentrated services, it is possible to conclude a procurement contract at the central level and executed (by issuing purchase orders) at the deconcentrated level.
The modalities for the implementation of this coordination mechanism are left to the discretion of the procuring authorities.
As with the order groupings, there is a need to anticipate the evolution of the needs and the scope of the services concerned before 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. In particular, it is impossible to integrate new services into the original scope of a contract or framework agreement being implemented.
Signature delegations are made in accordance with existing regulations.
The state is a single procuring power. Its services can therefore, without the need to use the control grouping mechanism, coordinate their purchases between them.However, they can always be guided by the grouping mechanisms, in order to organize their coordination.
6.2. 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 can concern all types of markets.
Order groupings can be created to meet specific or permanent needs. It is up to the constitutive convention to specify it.
Groups involving State or State public institutions and one or more local territorial or local public authorities must establish a tendering board. Such a commission is, in fact, the emanation of the deliberative assembly and, as such, plays an important role in local democracy. However, local authorities or local public institutions will have to be the majority, in order to remove the application of the rules traditionally issued by the public procurement code to local purchases, that is to say, for the group's tender board to receive decision-making competence, to allocate the market or framework agreement. If the Commission fails to do so, it has only a power of opinion.
In the case that the grouping is intended to pass only a market passed according to an appropriate procedure, the establishment of a grouping tender board is not mandatory. However, the constitutive convention may otherwise provide. In addition, such a case of figure suggests that the purchasing framework may not be appropriate: a grouping is a purchase modality, which has advantages, but which is heavy to implement and should therefore be reserved for important purchases.
In order to assess the amount of needs of a grouping between the State and one or more territorial authorities, and thus to define the procurement procedure to be implemented, reference should be made to the thresholds applicable to the state markets, i.e. the most restrictive thresholds.
The Code provides for a number of modalities for the participation of members in a group of orders, applicable to both formalized contracts and to those contracted in a suitable procedure.
In addition to the case where each member of the group signs its contract, 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 just sign and notify the market, and let the members of the group run the market, each for what concerns it. This formula 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 to the market, its members undertake to respect a set of commitments and, in particular, a minimum purchase volume.
6.3. Use of a purchasing power plant
The purchaser may decide not to carry out the procurement procedures himself, but to use a purchasing power plant. The direct use of a purchasing power plant is authorized by the code, provided that the purchasing power plant itself complies with the advertising and competition rules imposed by the code or by theOrder No. 2005-649 of 6 June 2005.
It may be entrusted with more or less extensive missions, ranging from the provision of supplies and services to the issuance of framework agreements or contracts for procuring authorities.
A procuring authority, such as a public institution or a territorial authority, may decide to establish itself in a procurement centre and to place markets on behalf of other public bodies, provided that it is subject to the rules of the public procurement system for the whole of its purchases and provided that it specifies it in its market or in the terms of the framework agreement. It may exercise this faculty within the limits of its competence and, where appropriate, in that of the principle of speciality.
When a purchasing power plant passes a framework agreement for its members, each of them may be responsible for its execution. This execution may consist, as in the context of a group of orders, in the transfer by each of its members of the subsequent contracts to meet their needs.
7. What form of market adopt?
7.1. The choice of market devolution mode
Article 10 of the Code sets out the allotment in principle to generate the widest competition between companies and allow them, regardless of their size, to access the public order (EC 9 July 2007, union EGF-BTP, no. 297711) when the subject-matter of the market allows the identification of separate benefits. All markets have passed into separate lots, if they can be divided into coherent sets, lots whose procuring power remains free to set the number. The benefits can be collected in a single market under conditions specified by the code.
Leasing is particularly appropriate, where 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 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. It is possible to assign all lots to the same candidate. Conversely, the procuring authority may prohibit, in the notice of public appeal to competition or, where the publication of such notice is not mandatory, in the documents of the consultation, the same candidate to submit an offer on several lots. This can be done, for example, to preserve the safety of supply chains.
7.1.1. Leasing and the Single Market
Article 10 of the Code allows the procuring authority to resort to a global market, when the laying is made difficult by reasons:
― techniques, linked to difficulties, for example, in maintaining the coherence of the benefits or the inability of the public purchaser to carry out the tasks of organisation, steering and coordination;
economics, when allotment is likely to restrict competition;
financial, when it is likely to significantly cut down (25) the cost of the benefit.
When one of these three conditions is met, the devolution as a global market does not forbid the procuring authority to identify benefits in a separate way (in the form of technical positions) (26). This decomposition in technical positions is a different operation than that of allotment and does not hinder the conclusion of a single market (27). It allows for the use of a joint group, in which each company is only engaged for the benefits it is awarded.
It can be used in a global market to enter into an energy performance contract (28), pursuant to section 5 of the Programming Law for the Implementation of the Grenelle of the Environment (29).
In the event that the purchaser uses a global market with the purpose of both the construction and operation or maintenance of a work, the purchaser must show their costs separately, in order to distinguish between the expenditures related to the investment of those related to maintenance and operation, without the possibility of offsetting each other. Overvalued operating expenses is a deferred payment, prohibited by the public procurement code.
7.1.2. Small lots
The provisions of Article 27, III, allow for the transfer of contracts, according to an appropriate procedure, for lots less than €80,000 (tax excl.), provided that the cumulative amount of these lots does not exceed 20% of the value of the entire market. For work markets greater than the threshold of €5,150,000 (tax excl.), the value of these "small lots" is increased to €1,000 000 (tax excl.), the condition of not exceeding 20% of the total market being maintained.
The amount of the market is calculated by adding the value of all lots. The cumulative amount of the batch(s) to be subject to the appropriate procedure is compared to this total amount. The procedure for "small lots" can be used:
- if the amount of all the lots concerned does not reach 20% of the total amount;
― and if each of these lots does not reach €80,000 (tax excl.) for supplies and services markets and €1,000 000 (tax excl.) for work markets.
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.
7.2. The possibilities of "split" markets
and Timely Market Planning
The public purchaser may, when it does not consider satisfying all of its needs in a single time, use specific forms of markets, such as parole contracts or purchase orders. It may also choose to enter into framework agreements, on the basis of which one or more subsequent contracts will be awarded to one or more attributable economic operators of the framework agreement and awarded to competition.
These contracts have passed, depending on their characteristics, according to the various procedures provided by the code.
Three types of markets allow this dissociation.
7.2.1. Purchase orders (art. 77) (30)
The buy-in market is a "market concluded with one or more economic operators and executed as orders are issued." It can be concluded without maximum or minimum, which gives more freedom to the public purchaser who is not required to guarantee a minimum of expenses. A buyer can therefore make repetitive purchases, by organizing a single full competition procedure for potential suppliers.
However, the procuring authority has always interest in entering into purchase orders with a minimum and maximum, if possible. This allows it to obtain economically more advantageous offers:
– the setting of a minimum allows economic operators to secure their orderbook and, accordingly, streamline their production tool, anticipate economies of scale or guarantee the financing of the investments necessary for its extension;
― the setting of a maximum allows to indicate to economic operators the level of mobilization of their production tool, if any, the availability conditions of this tool to meet the demands of other customers.
In return for the more advantageous conditions that may be granted, the procuring authority shall assume the contractual consequences of the contract:
- if the public purchaser does not reach the minimum provided for in the contract, he shall compensate his contractor for the damage suffered (31);
– if the public purchaser exceeds the maximum, he cannot compel his contractor to assume the share of the corresponding benefits, without entering into a contract: the market holder is, in fact, engaged by the market only to the maximum, any additional order is subject to his agreement. As if any, the general economy of the market cannot be disrupted by modifying the object or extent.
A market for which no maximum is expected is presumed to exceed the implementation thresholds of formalized procedures. It is, therefore, always passed according to such a procedure. Therefore, if the procuring authority is certain not to exceed the threshold for the implementation of formalized procedures and that it wishes to resort to an appropriate procedure, it is necessary to assort the contract with orders of a maximum.
Even if a maximum has been set, it is necessary to pass the market in a formalized procedure, if there is a risk of exceeding the threshold of implementation of formalized procedures during the course of the market execution. This remark is also valid in terms of advertising obligations, if one can assume that the amount can reach €90,000 during execution.
The purchase orders are then issued without negotiation or competitive bidding of the holders, even if the contract has been concluded with several economic operators. They are distributed among these licensees in accordance with the terms and conditions established by the market. They may, for example, be assigned in turn, or according to the so-called cascade method, which is to give priority to the less-called licensees.
Order vouchers determine the amount of benefits or products requested.
Some benefits do not lend themselves to the purchase order form. Thus, it is not possible to make a purchase order, to purchase master's benefits.
The procuring authority may only be directed to a provider other than the market holder for occasional low-value needs (less than 1% of the total market amount and less than €10,000 (tax excl.).
In order to facilitate the coordination of procurement between a central government and its deconcentrated services, it is possible to conclude a purchase order contract, which will be passed at the central level and executed at the deconcentrated level (emission of purchase orders).
The purchase orders have been issued, except for exceptionally justified cases, for a maximum of four years. Beyond this duration, it is no longer possible to issue orders. On the other hand, the validity of the purchase orders issued during the performance period of the market may exceed this period. It is, in fact, fixed in accordance with the usual conditions for the performance of benefits subject to the contract. If an order is issued at the end of execution, it will remain valid after the expiry of the contract under which it was issued. It is therefore possible to use the issuance of purchase orders at the end of the market, for example, to ensure the continuity of a supply the time of completion of the next procurement procedure, in particular, when this procedure has been delayed.
On the other hand, it is forbidden to extend, by this means, the duration of the market "in conditions that ignore the obligation of periodic competition from economic operators" (art. 77), i.e. under conditions that indicate a manoeuvre intended to extend this duration beyond reasonableness. This duration is estimated based on the object and characteristics of the market, but in general, should not exceed the time required for the realization of expected benefits:
- a period of validity of the purchase orders exceeding the expiration of the market over that month could be considered as depriving of effect the provisions limiting the validity of the market to four years;
― the procedure for renewing a purchase order contract is a predictable event, whose occurrence should not, except exceptional circumstances, surprise the procuring power.
It is possible to place purchase orders for less than four years. In particular, it is possible to limit the duration of a purchase order contract covering supplies or services intended to meet a regular one-year need, which allows to match this duration with the need to take into account the needs of one year, in calculating the trigger thresholds for formalized procedures.
It is not possible to terminate a purchase order contract before its end, for the sole reason that the minimum has been reached: the duration of the contract is one of the elements determining the conditions of the initial competition. A termination under these conditions is, moreover, likely to constitute a lack of understanding of the provisions of the code prohibiting to address, during the performance period of the contract, another provider other than the licensee, except for occasional low-value needs.
7.2.2. The framework agreement (art. 76) (32)
The framework agreement is essential to separate the procedure of choice from the economic operators(s), the allocation of orders or actual markets. This is more of a planning and optimization tool than a way to differentiate orders. It allows to select several providers, which will be subsequently competed, when the need arises.
A framework agreement is a contract between one or more procuring powers with one or more economic operators that grants them a single or shared exclusivity for a specified period of time and on the basis of which markets have subsequently passed.
The framework agreement is not a reference system. It is a closed system. No new service provider can enter the framework agreement after its assignment.
The framework agreement, which 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 offers for the framework agreement, depending on the characteristics of its needs.
Above the thresholds of formalized procedures, the framework agreement must be passed after tendering or, if the conditions provided by the code are met, after a negotiated procedure or a competitive dialogue.
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 at the time of the competition of the holders of the framework agreement.
A framework agreement can also be reached with a single economic operator.
Subsequent contracts passed under a framework agreement specify the characteristics and terms and conditions of delivery of benefits that have not been set out in the framework agreement; However, these markets cannot make substantial changes under the terms set by the framework agreement.
Subsequent contracts are awarded by the representative of the procuring authority or the local executive authority. Subsequent contracts of local authorities do not have to be submitted to the advice of the tender board. However, it may be advisable to organize the consultation, as long as the subsequent markets set essential elements at their level, particularly with regard to the price. For this reason, it is recommended to submit to the notice of the tendering board the subsequent contracts in excess of the Community thresholds (33), the Commission only has an advisory power: it is not competent to award the contract.
There may not be a negotiation phase with the holders of the framework agreement participating in the competition, if the framework agreement has been entered into in a formalized procedure. Direct negotiation with co-holders is only possible if the framework agreement has been passed according to an appropriate procedure or if the public purchaser is in one of the assumptions defined in Article 35 of the Public Procurement Code (34).
Subsequent contracts may be concluded either at the time of the need, or at a particular interval provided by the framework agreement itself (e.g., where the available stock of products subject to the framework agreement becomes equal to or less than a pre-established level).
When the market is alloti and the lots deal with different products or services, if the competition is made at the time of the need arises, only the holders of the lots concerned are competitively challenged. On the other hand, if the competitive bidding is made according to a predetermined periodicity by the framework agreement, all the holders of all the lots are competitively contested.
Framework agreements are subject, for their duration, to the same regime as the purchase order contracts, it is also prohibited to extend this term "in conditions which ignore the obligation of periodic competition from economic operators" (art. 76). The comments on this issue with respect to purchase orders are applicable to them.
7.2.3. The case of non-stockable energy purchases (art. 76-VIII)
Section 76-VIII of the code provides a specific device for these purchases.
They can give rise to 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 be found after the market or framework agreement.
7.2.4. Conditional contracts (art. 72)
In a conditional market, the public purchaser is only engaged on the firm slice; on the other hand, the supplier is on all the slices of the market. For the assessment of the procedural and advertising thresholds, as well as for the judgment of the bids, all the slices must be taken into consideration, adding the estimated amounts of each of them.
This type of market allows the launch of a consultation for the realization of a program, providing potential candidates with good visibility throughout the operation. The supplier's commitment may be limited over time, if the market expressly provides a time limit for band chartering. It is recommended to set such a time limit in the market, depending on its object and its characteristics. This period must be reasonable, so as not to harm businesses.
The market may provide that, where a conditional sentence is established late or not firm, the licensee may be eligible for a waiting allowance or a disclaimer allowance. The payment of this award must then take into account the likelihood of filing the conditional instalments and the need for the licensee to make investments to achieve the market.
Non-armed slices may, if applicable, be executed by another economic operator in another market.
7.3. The dynamic acquisition system (SAD, art. 78)
The dynamic acquisition system is a fully electronic procurement procedure for the purchase of current supplies. It is limited in time, but is an open device, which differs from the framework agreement. For the duration of its existence, all economic operators may, in fact, join it, as long as they meet the selection criteria and offer indicative offers in accordance with the consultation documents.
The definition of needs must be preceded.
The markets passed under the dynamic acquisition system are said to be "specific markets". The procuring authority shall issue a simplified market notice, established in accordance with the standard form 9, provided for in Regulation (EC) No 1564/2005 of 27 September 2005 (35), in the Official Journal of the European Union and shall respect a period of fifteen days from the date of the notice, before proceeding to competition.
The procuring power then invites the operators admitted to the system to present their final offers.
8. How do we know if we're over a threshold?
The thresholds for the initiation of formalized procedures are the thresholds provided by Community directives. They are fixed in section 26 of the code.
The thresholds of formalized procedures are amended every two years by decree (see Warnings).
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, with the aim of avoiding the rules of the public procurement code.
The procuring authority must adopt a formalized procedure for meeting its needs so assessed. However, it retains the ability to either enter a single market or, if it deems it useful, move as many markets as it considers necessary. For example, the completion of work, the estimated amount of which is higher than the procedural thresholds, must result in a formalized procedure, but may indifferently be the subject of a market 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:
8.1. For work markets: the concepts of work
(art. 27-II [1°])
The labour market 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.
In order to assess the amount of a labour market, the overall value of the work related to the same operation must be taken into account, which may relate to one or more works, a value added to which the value of the supplies necessary for their realization that the procuring power makes available to the operators. The procuring powers, on the other hand, do not have to take into account the value of the services required to carry out the work, as this is only mandatory for procuring entities. Thus, a local public institution with a study office will not have to integrate the amount of the services performed by this office for the completion of the work, if not as a network operator. On the other hand, it must incorporate the value of a stock of tiles available to it and make it available to the owner of a building rehabilitation market, even though this provision would be made available to the market price reduction.
The concept of work is that of community law. Thus, it was found that green space maintenance works are maintenance services, as defined in Appendix I A of Directive Services No. 92/50, although they would be public works, under national administrative jurisprudence. As a result, the markets related to it are not work markets, but service markets. Their procurement procedures must be determined on the basis of the community thresholds applicable to such markets, significantly lower than that in force for public works markets.
8.1.1. The concept of work operation (art. 1-III)
The concept of work operation is of particular importance for the calculation of thresholds (CJCE, 5 October 2000, Commission c/ French Republic, c. C-16/98).
A labour market, within the meaning of the code, is a contract with contractors whose purpose is either the execution, or the design and execution of a building or civil engineering work or work that meets the needs specified by the procuring authority, which exercises the mastery of the work.
This set of work shall not be dissociate in consideration of the object, technical processes used or their funding, and shall be carried out in the same period of time and in a given geographical area.
An operation may also concern several works, such as the rehabilitation of the roofs of the schools of the same commune or the construction of pavements in different districts of the city, or the replacement of electrical cabinets or wiring. It may also concern certain work carried out on the same work of a different nature programmed at the same time, for example, in the area of rehabilitation.
8.1.2. The concept of work (art. 1-III)
The Public Procurement Code defines the concept of "work" in accordance with Community law, as denoting the result of a set of construction or civil engineering works intended to perform, by itself, an economic or technical function (CJCE, 5 October 2000, Commission c/ French Republic, c. C-16/98). The result is that a work can be made, work carried out by several procuring powers.
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.
8.2. For supplies and services markets:
the homogeneous character (art. 27-II [2°])
To estimate it in a sincere and reasonable manner, the total value of the supplies or services taken into account is that of uniform supplies or services:
due to their own characteristics;
because they are a functional unit.
The choice between these two formulas shall not, in any case, be made to allow the procurement to be exempted from the procedural rules established by the code. It is recommended that buyers make this choice, at the time they determine the nature and extent of their services and supplies needs.
Homogeneity of needs is a concept that may vary from buyer to buyer, and it is up to him to appreciate, depending on the characteristics of the activities that are specific to him and the coherence of his 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, based on 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.
The amount of non-priority service contracts passed pursuant to Article 30 of the Public Procurement Code is assessed, without reference to the concept of homogeneous but market-based service.
8.3. Determining markets without paid prices
by the procuring power
Contracts can be expensive contracts, even though they would not give rise to a price. This is, in particular, the case when the remuneration is paid by abandonment of revenues. Can be considered a remuneration for the abandonment of advertising revenues, or the exemption of royalty for public domain occupation. In this case, the predictable amount of the market is assessed from the amount of the abandoned revenues. In the case of abandonment of advertising revenues, the amount of the market is calculated from the estimated amount of advertising revenues (36).
It is therefore necessary to reintegrate any revenue received by the contract holder and add them to the price paid, if any, by the public purchaser.
9. How to get the help needed for development
What about a contract?
State services and central public authorities may find assistance by e-mail to the Office of the Public Buyer's Council (37).
Local authorities will find telephone assistance from the Legal Information Unit to public buyers, located in Lyon. This unit is under the functional authority of the Department of Economic Affairs' Directorate of Legal Affairs, to which it links a partnership agreement.
Article 129 of the Code also provides an advisory body whose mission is to provide public buyers with assistance in the development or transfer of their markets and framework agreements, the advisory board of public procurement.
This commission succeeded the commission of the public markets of the State, whose referral was only open to the services of the State.
The Decree No. 2008-1355 of 19 December 2008 the implementation of the economic recovery plan in public procurement has made the commission's referral optional and expanded its jurisdiction to territorial authorities, as well as to public institutions subject to the public procurement code. The Public Procurement Advisory Board is seized of local markets only when the amount of these contracts exceeds an amount fixed by order of the Minister responsible for the economy. The threshold was set at 1 million euros by the October 22, 2009 decision on assistance to territorial authorities by the Public Procurement Advisory Commission for the development and transfer of their contracts and framework agreements (38).
Its mission, organization and operating procedures are specified by the Decree No. 2009-1279 of 22 October 2009 the Advisory Committee on Public Procurement (39).
10. What publicity measures
and competition?
10.1. Why should advertising be done?
and competition?
Advertising and competition measures ensure compliance with the principles referred to in Article 1 of the Code: freedom of access to public order, equal treatment of candidates and transparency of procedures.
These principles stem from the rules of the Treaty establishing the European Union and, in particular, from the principle of non-discrimination on the basis of nationality (CJCE, 7 December 2000, Telaustria, C-324/98). The Constitutional Council devoted the constitutional value of comparable principles, drawn from articles 7 and 14 of the Declaration of Human and Citizen Rights of 1789 (Constitution Council, Dec. No. 2003-473 DC, 26 June 2003, enabling the government to simplify the law, OJ of 3 July 2003, p. 11205. The Council of State applies to the law of public procurement these general principles (Council of State, Opinion, 29 July 2002, company MAJ Blanchisserie de Pantin, no. 246921, Lebon, p. 297).
The advertisement presents a dual utility. It allows free access to the public order of all interested providers; it is also the guarantee of genuine competition, attracting applications and offers. In doing so, it is the pledge of a response tailored to the needs of the buyer.
Competition in the public procurement act also responds to the concern of economic efficiency. By attracting a greater variety of offers, it makes it possible to increase the chances of obtaining the most economically advantageous offer and to guarantee good use of public money.
The terms and conditions of advertising and competition that must be implemented by public buyers are determined based on the estimated amount of the need to be met, assessed in accordance with the provisions of Article 27 of the Code (see point 8).
When the public purchaser organizes a call for projects but does not know the nature of the future contract, he must apply the most stringent passation procedure (EC, June 10, 2009, Autonomous Port of Marseille, No.317671, referred to in the Lebon tables).
10.2. Above formalized procedural thresholds
Unless they fall under section 30 of the code (see point 10.4), the contracts with an amount greater than or equal to the thresholds set out in section 26 (40) must be passed on a formalized basis. The public purchaser must respect the advertising and competition rules set by the code.
10.2.1. What advertising?
Above these thresholds, notices of public tender for competition are obligatoryly published in the Official Bulletin of Public Procurement (BOAMP) and the Official Journal of the European Union (JOUE) (41). As of January 1, 2010, they must also be published on the buyer's profile of the procuring power.
10.2.1.1. Mandatory publication in BOAMP and JOUE
Above the formalized procedural thresholds, notices published in BOAMP and JOUE are prepared 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 attention of the buyers is drawn to the fact that in the event of a paper-based transmission of notices of advertisement to the JOUE, their content should not exceed 650 words (equivalent to a page of the JOUE), otherwise the European Union Publication Office may refuse to publish it.
The procuring authority is required to refer to the number of nomenclature of Regulation No. 2195/02/EC concerning common vocabulary for public procurement, says CPV for Common Procurement Vocabulary. 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, which allow the removal of language barriers.
The publication at BOAMP must not intervene before sending to the Office of Official Publications of the European Union (OPOUE) and the notice published at BOAMP should not contain more information than that transmitted for publication to the JOUE. In practice, the risk of contravening these requirements is limited, given the automatic transmission system established by the BOAMP services. This mechanism has led the State Council to consider that, when the public purchaser uses the single electronic form whose BOAMP itself ensures the transmission for publication in the JOUE, at the same time that he uses it for his own publication, the absence of mention regarding the date of transmission of the notice to the OPOUE is without impact on the regularity of the procedure, the date of the sending of the notice on the notice
The sections of the notice model must be filled with the utmost attention. The omissions, errors or ambiguities are as occasion for the candidates who have been ousted to request the annulment of the procedure, even if they cannot usefully invoke, before the judge of the pre-contractual and contractual referees, that breaches which, in view of their scope and the stage of the procedure to which they relate, are likely to have adversely affected them or risk to damage them (Council of State,
Administrative jurisprudence has specified the terms and conditions of use of forms. It states, inter alia, that:
- contracts with purchase orders, within the meaning of national law, are framework agreements, within the meaning of community law. Therefore, in the event of a purchase order, the section on the information on the framework agreement must be provided (State Council, 8 August 2008, commune of Nanterre, no. 309136);
― the information that the market is or is not covered by the Agreement on Public Procurement (MPA) concluded under the WTO is mandatory (Council of State, May 14, 2003, Community of Agglomeration of Lens-Liévin, No. 251336 (42) (see note 11.1);
― the total quantity or extent of the market must be mentioned, including in the case of a framework agreement or contract with orders without minimum or maximum. In this case, public buyers must provide information on the subject by indicating, as an indication and forecast, the quantities to be provided or elements to assess the extent of the market (State Council, October 24, 2008, Artois Community of Agglomeration, No. 313600 and 20 May 2009, Minister of Defence, No. 316601);
― the options section (43) must be provided, where benefits are provided that may be added to the benefits ordered on a firm basis in the market as part of possible conditional tranches, similar markets or contract renewals. These options, which the procuring authority reserves the right not to lift, must be taken into account in the calculation of the thresholds. Therefore, the number of possible extensions of the market should be included in this section. These are not options, benefits that the need arises in the course of execution: adverts and complementary markets are therefore not options;
― the obligation to mention the essential terms and conditions of financing requires the public community to indicate, even in a succinct manner, the nature of the resources it intends to mobilize to finance the operation under the market, which may be its own resources, public or private external resources, or contributions from users (State Council, November 17, 2006, ANPE, No. 290712);
―the market notice must state the documents or information, from which the procuring authority intends to control the professional, technical and financial guarantees of the candidates (State Council, March 26, 2008, Urban Community of Lyon, No. 303779). To this end, the purchaser may require candidates to use the forms DC 4 and DC 5 (44) (Council of State, November 21, 2007, Var Department, no.300992), but not to go beyond what is necessary to assess the abilities of the candidates against the object of the market;
― the reference to the deadline for the communication of the consultation file should only be provided if the public purchaser intends to set such a deadline (State Council, August 8, 2008, commune of Nanterre, No. 309136);
― the absence of an indication on the language(s) in which the offer can be written constitutes a breach of advertising obligations (Council of State, 27 July 2001, General Water Company, No. 229566);
- in the absence, in French law, of obligations imposing the public character of the opening session of the folds, the public purchaser is not required to include, in the notice, details of the persons authorized to attend the opening of the tenders, as well as the date, time and place of that opening (Council of State, July 27, 2001, General Water Company, No. 229566);
― in section VI.4 on appeal proceedings, the purchaser must in all cases provide sub-rubricant VI.4.1 on "the appeal proceedings proceeding", i.e. the territorially competent administrative tribunal, as well as at least one sub-rubricant VI.4.2 on "the introduction of appeals" or VI.4.3 on "the service to which information may be obtained with respect to the introduction of appeals" (No. If he or she informs section VI.4.2, he or she can only return to theArticle L. 551-1 of the Administrative Justice Code (Council of State sect., 3 October 2008, Smirgeomes, no. 305420) or to indicate the possibility of forming a pre-contractual referendum before the signing of the market (Council of State, 22 December 2008, Community of Agglomeration Salon-Etang de Berre-Durance, no. 311268); if it indicates section VI.4.3: the mention of the name and contact information of the competent administrative tribunal is sufficient (Council of State, 6 March 2009, Commune de Savigny-sur-Orge, no. 315138) (45).
Finally, in the event of an error affecting a notice of public appeal to competition, the public purchaser may issue a notice of proof. However, if this rectification makes a substantial change to the market, it is necessary to postpone the deadline for applications, in order to meet the minimum deadline set by the Code (Council of State, 16 November 2005, city of Paris, no. 278646).
10.2.1.2. Mandatory publication on the buyer's profile
The buyer's profile is "the dematerialized site to which the procuring authority uses for its purchases" (art. 39). It must be a site, usually a "platform", accessible online, via the internet network, offering all the features necessary for the dematerialization of procedures: at a minimum, information of candidates and receipt of applications and offers. A community's website can only be described as a buyer's profile if it offers access to these features.
This type of support, given the development of new information technologies, is increasingly consulted by candidates for public procurement. Due to its moderate cost and the importance of its potential audience, dematerialized publication is an effective way for buyers to secure their purchases and especially small purchases.
Portals dedicated to the publication of market notices can have greater visibility than the websites of public buyers and offer more features, including the possibility of identifying the economic operators who access it to download the business consultation file or the filing of their applications and offers electronically. It is good practice to set up a specific platform for all of its markets and to include a directory of market reviews with listing; the possibilities offered by the internet are thus fully exploited for greater transparency and efficiency (46).
As of January 1, 2010 and for its markets of more than €90,000 (tax excl.), the procuring authority must publish notices of public appeal to competition, as well as the documents of the consultation, on its buyer's profile.
10.2.1.3. Additional advertising
In order to meet the requirement for effective advertising, the procuring authority can always use, if it considers it necessary, additional advertising materials for all its markets, such as a publication in the regional daily press or the specialized press or publication by display.
Complementary advertising allows the public purchaser to receive applications or offers that he would not have obtained without it. Thus, for markets of a high amount, where the cost of a supplementary publication in a press body is insignificant with regard to the amount of the market, it may be appropriate to seek to promote, as much as possible, competition through additional publications. It goes without a legal obligation, of the economic interest of the buyer.
This advertisement can be made in the regional daily press. The regional daily press is an important provider of corporate information, including SMEs. The establishment, since 2006, of a portal for businesses and accessible free of charge, presenting online the legal market announcements published in the regional daily newspapers allows to expand the dissemination of notices of public appeal to competition beyond the local audience of each title.
Advertising can also be made in 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 an effective support for targeted readership. The increasing dematerialisation of the specialized press also allows the public buyer to benefit from a wider dissemination of his opinions.
The purchaser can also usefully display its procurement projects on the materials reserved for this purpose. This additional information mode may be more suitable for small territorial communities.
Other complementary means may be used for advertising purposes. For example, an advertisement by radio voice is provided by the code in some overseas communities.
The content of the supplementary notices is left to the appreciation of the public purchaser who may be satisfied with minimum information, provided it expressly refers to the insertions made in the mandatory publications and which contain all of the published information (see article 4 of the Decree of 28 August 2006 taken under the public procurement code and setting the notice models for the passing and awarding of public contracts). Complementary advertising may intervene after mandatory publications. It does not, however, extend the deadline for receipt of applications.
10.2.1.4. Publication of a pre-information notice
Section 39 of the Code provides that procurements of supplies or services in excess of €750,000 (tax excl.) and contracts of work above the threshold of section 26 may also result in the publication, either to the JOUE or on the profile of buyer of the procuring power, of a notice of pre-information in accordance with the model set out in Regulation (EC) No. 1564/2005 above.
The publication of such a notice on the buyer's profile can only take place after the procuring authority has sent to the OPOUE, electronically, a notice announcing this publication.
The publication of a pre-information notice reduces the deadlines for receiving candidates' offers.
10.2.2. What competition measures?
Above the procedural thresholds set out in Article 26, the terms and conditions of competition are defined by the code.
It is essential to comply with all prescribed procedural deadlines. These deadlines are always minimal deadlines, which the buyer has the ability to increase. The purchaser's use of electronic means offers, however, the ability, in some cases, to reduce the deadline for applications and offers. Buyers can also benefit from a reduction in time, either in the event of an emergency that does not result from the public person or when they have published a pre-information notice.
It is recalled that the deadlines for receipt of bids must be extended in the event of a visit to the market enforcement or on-site consultation of additional documents. This extension, left to the appreciation of the public purchaser, must be sufficient to allow companies to compete in fair conditions.
10.2.2.1. Supply and services markets
When the amount of supplies and services markets reaches the thresholds set out in section 26 of the code, these contracts are, in principle, placed on tender.
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) (48) or, depending on the subject matter of the market, the special procedures provided for in articles 68 (communication operations), 71 (decoration of public buildings) and 74 (master's degree).
10.2.2.2. Contracts
Contracts of work have passed through a formalized procedure, when they reach the threshold set out in Article 26 of the Code, whether for the State or territorial authorities.
Contracts with an amount equal to or greater than this threshold are obligatoryly switched to the tender procedure, except to meet the terms and conditions of recourse to the negotiated procedure or to competitive dialogue.
10.3. Below formalized procedural thresholds:
the appropriate procedural markets
Contracts that are less than the thresholds set out in Article 26 may be passed according to an appropriate procedure. In this case, the procuring authorities must define themselves rules of advertising and competition proportionate to the object and amount of the market.
However, the issue of determining the terms and conditions of advertising is mainly raised for purchases between the procedural waiver threshold and €90,000 (tax excl.) since, below this procedural waiver threshold, no advertising measures are imposed by the code and, from €90,000 (tax excl.), the code imposes specific advertising terms.
10.3.1. Markets below the exemption threshold
(49)
By setting a threshold below which the procuring power is exempted from the implementation of advertising and competition measures provided by the public procurement code, France joins its European partners. Most EU member countries, as well as the European Commission, have indeed adopted such a threshold.
Up to this threshold, the procuring power "may decide that the market will be passed without advertising or pre-competition" (art. 28 of the code, last paragraph).
Markets below this threshold are only exempted from advertising and competition measures imposed by the public procurement code. They don't stay in the code field.
Therefore, communities must always meet their obligations with respect to prior needs definition (art. 5). The determination of the estimated value of needs in relation to the concepts of homogeneous operation and benefits must be given particular attention (art. 27). Public buyers must not cut the amount of their markets, so that they can artificially benefit from the dispensation of advertising and competition obligations, at the expense of the legal security of the contracts thus concluded.
The community must act as a well-informed manager and responsible for public money. It must be able to justify, at any time, the reasons for its choice and to ensure, in full transparency, the traceability of the procedures that it has employed, depending on the nature and amount of the benefit purchased possibly before the judge (e.g., by producing the requested quotes, price references or purchase guides used, such as those validated by the Economic Observatory of Public Procurement or the State Procurement Service) The establishment of a traceability note of the purchase is recommended.
The effectiveness of the public order and the good use of public money therefore invite public buyers to inform themselves about the structure of the existing offer on the market. When the procuring power has a good knowledge of the market, it can proceed to the procurement act without prior formality. If not, it may request economic operators to produce quotes or make a minimum advertising measure.
In the latter case, the choice of advertising carrier must be in adequacy or proportionate to the cost and nature of the purchase envisaged. The Internet publication on the dedicated site of the territorial community is a good vector of advertising, due to its low cost and the wide dissemination of information. BOAMP and the press also offer attractive prices for advertising these very small markets.
10.3.2. Contracts equal to or greater
at the procedural waiver threshold
10.3.2.1. What advertising?
Between the procedural exemption threshold and 90,000 euros (HT):
– the choice of advertising support:
For markets with an estimated amount between the procedural waiver threshold and 90,000 euros HT, it is up to the buyer to determine the terms of advertising "appropriate to the characteristics of this market, and in particular to its object, to its amount, to the degree of competition between the companies concerned and the conditions under which it has passed" (State Council, 7 October 2005, Nord region - Pas-de-Calais, n° 278732, Lebon,3).
The code leaves a freedom of appreciation to buyers; It is at this stage that their professionalism and their accountability make every sense.
If it is evident that the choice of advertising medium is based on the amount of the market, it must also 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.
The purchase will be considered to be carried out under satisfactory conditions under the principles of public order if, in fact, the means of advertising used allow potential providers, regardless of nationality or size, to be informed of the intention to purchase and, of the precise description of the need, to obtain a variety of offers sufficient to guarantee a real competition.
Only the measures taken by the own initiative of the procuring power are considered relevant. The advertising measures taken independently of its will have no influence on the regularity of the advertising measures it has taken. The emphasis is therefore on the individual responsibility of each public buyer.
The information can be broadcast on the buyer's profile of the procuring power.
This means of advertising can be a single sufficient means, provided that the user's profile has a hearing in relation to the market issue. It is recommended that public buyers inform potential applicants, for example through the publication of a notice on a traditional basis, of their intention to publish their notices on the buyer's profile. On the other hand, for smaller audience sites, this mode of information should only be considered as a complementary means of advertising, supporting a press release.
Information from potential candidates may also be broadcast to BOAMP, in the regional daily press or in the specialized press. These materials double their paper-based publication of an automatic online layout and often offer preferential rates, for market advertising below formalized procedural thresholds.
The determination of advertising content:
Regardless of the chosen advertising medium, minimum information must be made available to potential applicants. Thus, must always be mentioned: the identity and contact information of the buyer, the purpose of the intended benefits, the criteria for the award of the market and, if applicable, their conditions of implementation (Council of State Sect., 30 January 2009, National Employment Agency, No. 290236).
When the procuring authority publishes a notice of public appeal to competition, its discretion is more limited. In this case, and regardless of the publication organ used (BOAMP, legal announcement log or other publications), Article 5 of the Order of 28 August 2006 setting the notice templates for the procurement and award of public contracts and framework agreements imposes on public buyers the use of the public tender notice model set by this Order. The notice must contain, at a minimum, the information indicated as mandatory: the name and address of the purchasing agency, the subject matter of the contract, the attribution criteria, the type of procedure chosen, the deadlines for receipt of applications and offers, the date of the notice for publication.
Between 90,000 euros HT and formalized procedural thresholds:
For the appropriate procedural markets of more than 90,000 euros HT not falling within Article 30 of the Code (see point 10.4), the terms and conditions of advertising are specified in Article 40; It is therefore necessary to comply with it.
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). As of January 1, 2010, buyers are also required to publish notices on their buyer profile.
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 the mandatory forms set by the above-mentioned Decree of 28 August 2006 (50) for the publication of their notices, both in the BOAMP, in a legal announcement journal and in the specialized press. The principles laid down by the judge regarding community forms are to be applied (51).
10.3.2.2. What competition?
Under formalized procedural thresholds, competition is the responsibility of the buyer and must be adapted according to the market envisaged. The fact that some markets can be passed according to an appropriate procedure does not exempt them from the general principles of public order.
Respect for constitutional principles:
The buyer is obliged to respect the constitutionally valued principles referred to in Article 1 of the Code: freedom of access to order, equal treatment, transparency in the procedure to be implemented. It is up to it to define a procedure to ensure that the purchase was made in satisfactory conditions of transparency, taking into account the amount and nature of the benefits involved.
The freedom to define the procedure does not mean that one must not be able at any time to justify the reasons for the choices made. The specificity of the appropriate procedure lies in 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 this choice in the event of a dispute?
In order to justify this, any document must be retained to demonstrate that the choices made were 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.
The rationale for these choices will be all the more eased as the principle of equal treatment between candidates, within the time frame, in the information provided, in the expression of needs, in the communication of possible changes of needs, in the relations maintained with each candidate, in the criteria of choice...
Rules of common sense are required. 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.
The choice of procedural deadlines:
The determination of deadlines for the submission of applications or offers is left to the free appreciation of the procuring power. The effectiveness of competition requires, however, that interested economic operators be given sufficient time to design their applications and offer them, given the importance and complexity of the need and its urgency.
A suitable advertisement, which would set a time limit for receiving bids too short, could be considered insufficient, in view of the principles of transparency and equal treatment.
The choice of competition modalities:
The procedures for the transmission of applications or offers are also defined by the public purchaser. In particular, it may provide that such transmission should be carried out electronically.
Article 28 of the Code states that the procuring authority may resort to negotiation. Negotiation is, in fact, a decisive factor in the quality of public procurement, especially since it will be carried out in a transparent manner.
If the purchaser decides to use this option, it must inform potential candidates at the beginning of the proceedings, in the notice of competition appeal or in the documents of the consultation. In addition, the principle of equality of candidates requires negotiations with all economic operators admitted to bid, if any after a phase of selection of applications.
10.4. The particular case of Article 30 service markets
Section 30 deals with categories of so-called "non-priority" services that the community directives have heard to submit to simplified procedures regardless of their amount.
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.
Services markets, which fall within the scope of Article 30, come from areas as varied as education, qualification and professional integration services, recreational, cultural and sporting services, social and health services and legal services.
Due to the specificity of these markets, procuring authorities are allowed to use the appropriate procedure, regardless of the amount of the need to be met.
Accordingly, the terms of advertising and competition will be determined by the procuring authority, depending on the object and characteristics of the market. As the advertising threshold of 90,000 euros HT is not applicable to the service markets of Article 30, no advertising medium is imposed by the code.
This procedure allows to offer a great freedom of organisation to public buyers. The developments in this guide relating to markets above the procedural waiver threshold and less than 90,000 euros HT are transposable to the service markets of Article 30, regardless of their amount, subject to the following particular provisions provided for in Article 30 II:
- where their amount is equal to or greater than the threshold of section 26, these contracts must, for their transfer, set technical specifications and be subject to an award notice (52);
- for local authorities and local public institutions, they are awarded by the tender board if their amount is equal to or greater than 206 000 euros HT (47) and the markets for the representation of a territorial community for the settlement of a dispute are not transmitted to the control of legality (53);
– finally, legal services markets (legal advice and representation services, patent and copyright advice, legal documentation and information ... [54]) are exempted from the application of title IV of the contract enforcement code.
11. How to select the candidates?
11.1. Who can be a candidate?
It is the result of the principle of freedom of access to public order that any economic operator may apply to the award of a public market, with the exception of economic operators placed under the effect of a bid ban.
This is why, for example, it is prohibited for the public purchaser to deviate a candidate who, on the occasion of a previous contract with the public purchaser, would have collected information, without establishing that this information was actually likely to benefit from it and thus undermine the equal treatment between the candidates (55).
The bans on bidding result from criminal convictions, the personal situation of the company and the respect for tax and social obligations and employment obligations of workers with disabilities. The code refers to the list established by theArticle 8 of Order No. 2005-649 of 6 June 2005 on contracts passed by certain public or private individuals not subject to the Public Procurement Code (56). This list is supplemented by theArticle 29 of Law No. 2005-102 of 11 February 2005 for equal rights and opportunities, participation and citizenship of persons with disabilities.
The application of a company may be rejected, on the ground that the State of which it is a national, is not a party to the public procurement agreement (57). (see communication of 17/04/2009 from European Commissioner Mc Creevy).
A public purchaser may not prohibit companies between which there is a control report or which are related to each other, to bid concurrently on the award of the same contract (CJCE 19 May 2009 Assitur Srl, case C-538/07).
11.2. How do I submit an application?
Economic operators are free to present the required documents of them in the application file as they hear it. Since the coming into force of Decree No. 2008-1355 of 19 December 2008 in relation to the implementation of the economic stimulus plan in public markets, it is, in particular, no longer required of them, on call for open tenders, to present the documents in support of their application in a separate envelope from that containing the documents relating to their offer.
On the other hand, the buyer's obligation to examine the applications before the offers remains.
11.3. What should a nomination file contain?
The contract may only be awarded if the applicant provides the required certificates and certificates, when notified that the certificate has been retained.
In order to reduce the composition of applications, some certificates do not have to be produced by all candidates, but only by the only candidate whose offer is selected, prior to the signing of the contract. This is:
- parts provided for in articles D. 8222-5 and D. 8222-7 and D. 8222-8 of the Labour Code;
- certificates or certificates, proving that the candidate is in good standing in respect of his tax and social obligations;
- equivalent certificates issued by the authorities and agencies of the country of origin, if the candidate is a national of a State other than France. If not, it may then be an affidavit, a solemn declaration made before the judicial, administrative, notary or qualified professional body of the country concerned.
Newly created companies can 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 referred to in section 43 of the Public Procurement Code.
Candidates to a public market must file, with the application file, an attestation on the honour that they are not subject to any of these prohibitions. This certificate on honour must be dated and signed.
11.4. What are the modalities for selecting candidates
and the documents and information to be provided?
11.4.1. Does the company have the necessary capabilities
the execution of the market?
The provisions of the Public Procurement Code require the procuring authority to control the professional, technical and financial guarantees of candidates for the award of a public market (58). This verification shall be carried out in the light of the documents or information requested for this purpose in the notices of public appeal to competition, or in the rules of consultation in the cases of procedures exempted from sending such notices, among those listed by an order of the Minister responsible for the economy. Candidates may not be required to only the documents listed in the 28 August 2006 order setting out the list of information and documents that may be requested from candidates to contracts passed by the procuring authorities (59).
However, the ability of the procuring authority to choose, among those set by order, documents or information to assess the professional, technical and financial capacities of candidates, cannot lead to a request for any document or information for any of the three capabilities. Each of these three capacity categories should be evaluated (60).
The procuring authority may require candidates only objectively necessary information to the subject matter of the market and the nature of the benefits to be performed, allowing to evaluate their experiences, their professional, technical and financial capacities, as well as documents relating to the powers of the persons authorized to hire them (61). This principle is also applicable to appropriate procedures, particularly for service markets under section 30 of the code.
These documents are required from candidates within a time limit, as set out in the formalized procedures code, which, in the case of appropriate procedures, must be a reasonable time: it is essential to leave candidates with sufficient time to prepare their application. Thus, in the silence of the code and except exceptional circumstances, it is not reasonable, in appropriate procedure, to give less than ten days to a company to prepare and submit its application file. Ten days is, moreover, the minimum deadline for candidates to be allowed the procuring power, when he calls them to regularize their application file (art. 52).
The code provides two screening processes, depending on whether the procuring authority decides to choose between an open procedure, in which each candidate simultaneously submits a application and offer file and a limited procedure, which takes place in two separate stages: the selection of candidates admitted to bid and the choice of offer.
The limited procedure allows the procuring authority to limit the number of offers to be examined, making it easier to compare offers. It is possible, in particular, to focus on the offers from economic operators offering the best guarantees of capacity to deliver the services that are the subject of the market. The open procedure is better suited to current purchases, for which it is useful to create the widest competition, by holding all candidates who can perform the benefits.
11.4.2. The elimination of applications
Although the procuring authority does not set a maximum number of candidates admitted to bids, it must proceed with the examination and, where applicable, to the elimination of applications. If it has not established minimum levels of capacity (62), it can only eliminate candidates who obviously do not have sufficient capacity to execute the contract, i.e., those whose capacities are obvious, without requiring a thorough examination of the application file, insufficient to ensure the performance of the marketed benefits.
If the procuring authority has set minimum levels of capacity and has previously published them in the Notice of Public Appeal to Competition or, where the procedure is dispensed from the publication of such notice, in the documents of the consultation, it must eliminate candidates who do not reach these minimum levels. These must be linked and proportionate to the object of the market.
Capacity is then valued on the basis of the information or documents requested to the candidate pursuant to the Order of 28 August 2006, setting out the list of information and documents that may be requested from candidates to contracts passed by the procuring authorities (63).
The procuring authority may deviate the application of a company that would not have properly executed previously concluded contracts. But, if the company provides references other than those relating to previous markets, the procuring authority must examine these other references and not motivate the rejection of the application on the only bad execution of previous markets (64).
11.4.3. Selection of candidates
The selection of applications is carried out in the limited procedures for which the purchaser has decided to limit the number of candidates admitted to bid. The criteria for the selection of applications must be mentioned in the notice of public appeal to competition or, where the publication of such notice is not necessary, in the regulation of the consultation, as specified in Article 52, II of the Code.
Thus, the selection of applications is different from the elimination presented above. As part of the selection, the buyer selects, after ranking, the best among those with the required level of capacity. As part of the elimination of applications, the purchaser must simply give up those who do not have the required level of capacity. It is possible, in restricted proceedings, to proceed both to the elimination and selection of applications, as long as minimum levels and selection criteria have been published in the notice of public competitive appeal or, in the case of the proceedings exempted from the publication of such notice, in the regulation of the consultation.
11.4.4. What are the criteria for selecting candidates (art. 45)?
The criteria for choice are two types: technical and professional capacities, and financial capacities.
11.4.5. Technical and professional capacities
Technical and professional capacities are very close. Technical capabilities are the material means (including equipment) and human (staffs, technicians with a specific qualification) available to the candidate. They are valued quantitatively and qualitatively. It is possible, for example, to ask candidates:
- certificates establishing deliveries or services performed by the applicant for the benefit of a procuring power or a private purchaser;
- certificates of good execution for work;
a description of the technical equipment;
- the curriculum vitae or professional qualification certificates of certain qualified officers.
Vocational abilities allow the candidate to verify if the qualifications are required, i.e. "the proof of a certain level of professional competence". Proof of professional capacity can be provided by any means, including references or professional justifications. However, the procuring authorities must ensure that such evidence is not discriminatory, which may be the case when an organization holds a monopoly in the issuance of certificates. In these assumptions, the equivalent documents should be accepted.
These specific justifications include professional certificates and quality certificates (certificate awarded by a certifying body or certifying the existence of a quality manual and procedures).
With respect to professional certificates, the procuring authority must specify that proof of the company's capacity can be provided by any means, including by professional identity certificates or work references, attesting to the economic operator's ability to perform the performance for which it is a candidate. Professional qualifications are established by professional qualification bodies (65).
The same is true of quality certificates, for which the procuring authority must accept other evidence of equivalent quality assurance measures produced by service providers, if they do not have access to these certificates or have no opportunity to obtain them within the specified time limits (66).
In both cases, the obligation to accept equivalencies is satisfied if the procuring authority has declared to accept these certificates, as well as "other supporting documents considered equivalent" (67).
The procuring authority must, in fact, accept any equivalent means of evidence, in particular as well as the equivalent certificates of bodies established in other Member States (CMP 45-II) or "any other document considered equivalent" (CMP 45-III). The procuring power specifies how it appreciates them.
The requested references must be in relation to and proportionate to the subject matter of the market: the candidate chooses the ones that seem most appropriate to it. The buyer verifies the reality, respecting the secret of business. But "the lack of references to the execution of previous markets of the same nature cannot justify the elimination of a candidate" (article 52-I of the CMP), in order not to penalize access to new companies, especially small and medium-sized enterprises, to public order. It is possible to reject the application of a company, on the ground that the past benefits have not been satisfactory, on the express condition that these contestable benefits are the only reference of the particular professional capacity (EC, 10 June 2009, Lorraine region, No. 324153).
11.4.6 Financial capacity
Financial capacities, which can only be of a general nature, must enable the candidate to complete the market. To establish its financial credibility, in addition to the turnover, the candidate may be required to obtain a bank certificate or proof of professional risk insurance, as well as balance sheet or balance sheet extracts for economic operators in respect of which the publication of the balance sheet is mandatory under the law. These certificates must be provided without the possibility of replacing an equivalent document.
When the company is unable to provide a balance sheet or balance sheet for the past three years, for example, when it is recently created, it may provide a "appropriate bank statement". This document facilitates proof of the candidate's financial credibility. Its form, left at the discretion of the credit institution that provides it, is free.
The required financial guarantees of candidates may be used as a criterion of choice at the time of selection of companies that will be allowed to submit an offer. At the stage of the selection of bids from eligible companies to submit their offers, the presentation of financial guarantees can no longer be required (CAA Bordeaux, November 13, 2008, no 06BX02602, unpublished in Lebon).
11.4.7. How can we facilitate access by small and medium-sized enterprises to public order in the selection of applications?
Section 52 of the Public Procurement Code states that the lack of references to the execution of markets of the same nature cannot justify the removal of a candidate and does not exempt the procuring authority from examining the professional, technical and financial capacities of candidates. These provisions are likely to promote access to new or small businesses to new markets.
The code sets out in its article 51 the conditions under which candidates have the opportunity to consolidate their means, by constituting momentary groupings of enterprises, which allow them to unite their human and material means.
Similarly, in the third of its article 45, it states that in order to justify its professional, technical and financial capacities, the candidate, even if it is a grouping, may also request that the professional, technical and financial capacities of other economic operators be taken into account, regardless of the nature of the links between these operators and him. In this case, it justifies the capabilities of these economic operators and provides evidence that it will have for the execution of the market.
These may include, for example, means of a subsidiary or third-party enterprise.
These other parts may include references from another company (any company may avail itself of the references and means of another company). A small or medium-sized company may, in fact, rely on the means of a third-party company if, for example, it is part of the same group of companies, if it demonstrates that it will be able to benefit from the capabilities of subcontractors. The legal ties of any kind between companies are taken into account, in order 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 "timed grouping of companies" (arts. 45-III and 51 of the CMP). She must then establish in her application file that she actually has the external means to which she is prevalent.
11.5. What happens if the candidate's file is incomplete?
During the examination of applications, in formalized procedure or in appropriate procedure, buyers may request candidates to complete the content of their application, in the event of an incomplete or incomplete production of a piece claimed for their application and their legal capacity (68). The code does not require the procuring authority to request the bidders the missing documents. If the applicant decides not to apply for regularization, candidates whose file is not complete are not allowed to submit an offer.
If he uses this faculty, the representative of the procuring authority proceeds to the application for regularization, which he addresses to candidates whose file is incomplete. The principle of equal treatment of candidates implies that an identical time limit is granted to all candidates to complete their application. This is the reason why the representative of the procuring authority informs the other candidates, stating that they can take advantage of the reopening of the deadline for receiving applications, if they feel it is necessary, to ensure the completeness of their application file. The period granted by the procuring authority must be reasonable. The code specifies that it cannot be less than 10 days (art. 52). It is only at the end of this period that the competent authority may decide on the applications.
In no case can this new deadline be used by candidates to complete their offer.
In most cases, this deadline will only be useful to the company whose file is not complete.
11.6. What documents to be produced by the candidate
to which is it envisaged to assign the market? (69)
In order to prove that it has met its tax and social obligations, the candidate, whose offer has been selected, must produce certificates and certificates issued by the competent authorities. The list is contained in the Order of 28 August 2006 setting out the list of information and documents that can be requested from candidates for contracts passed by the procuring authorities (70). This may be a copy of the annual statement of certificates received, the model of which appears in Form DC 7 (71).
If the amount of the contract is equal to or greater than 3,000 euros, the successful candidate must also provide the documents mentioned to theArticle D. 8222-5 of the Labour Code (disguised work), if established in France or those mentioned in Article D. 8222-7, if established abroad. These obligations were introduced into the Labour Code by theArticle 71 of Act No. 2004-810 of 13 August 2004 relating to health insurance (amending article L. 8222-2 of the Labour Code) and Decree No. 2005-1334 of 27 October 2005 relating to concealed work (modifying articles D. 8222-5 and D. 8222-7 of the Labour Code). In accordance with these provisions, the procuring authority is required, in its capacity as an order donor, not only to exercise this control prior to the passing of any order, but also to require these parts every six months until the end of the contract.
These documents are provided within the time limit set by the procuring authority. If this deadline is not met, the candidate's offer is rejected and is eliminated. The candidate who is classified immediately after him is asked to produce the certificates and certificates. This procedure is, if any, reproduced until the exhaustion of offers that have not been rejected, because inappropriate, irregular or unacceptable.
The successful candidate must also hand over to the owner of the work, before the contract is notified and every six months during the execution of the contract, the exhibit referred to in sections D. 8254-2 at ―5 of the Labour Code. This is the nominative list of foreign employees that it employs and subject to the work authorization referred to in the above-mentioned workers Articles L. 5221-2, 3 and 11 of the Labour Code. This list specifies, for each employee, his/her date of employment, his/her nationality as well as the type and number of the title vanishing work authorization.
The control of these devices is of particular importance, since the public purchaser is held in solidarity with his partner in the penalties provided for by the Labour Code, in the event of unawareness of these legal provisions.
The provision of these documents does not concern the attributes of the framework agreements: it will only be requested for the attributes of the subsequent markets.
11.7. How to dematerialize public markets?
The electronic channel is increasingly used for exchanges that occur in the public procurement process. It is obligatory for markets passed through a dynamic acquisition system and becomes mandatory in an increasing number of other cases.
Effective 1 January 2010:
― for contracts of more than €90,000 HT, the procuring authority or the procuring entity shall publish notices of public appeal to competition, as well as the documents of the consultation on its procurement profile (see 10.2.1.2);
- the procuring authority may impose on candidates the electronic transmission of their applications and offers;
― candidates for the supply markets of computer equipment and computer services in excess of €90,000 HT must submit their documents electronically.
As of 1 January 2012, the procuring authority will not be able to refuse, for contracts with an amount of €90,000 HT, to receive the documents of the candidates electronically. The transmission of paper documents cannot be imposed by the consultation regulations.
The candidates apply the same mode of transmission to all the documents they address to the procuring authority (I of section 56 of the code). Thus, a candidate who would have chosen to send his or her application through dematerialization cannot send his or her offer on paper. This provision is, of course, not applicable to the transmission of samples or models.
The procuring power is free to fully dematerialize a suitable procedure or the procurement of a contract following a framework agreement. This decision is binding on candidates.
When an electronic transmission is mandatory, a file of application or offer sent in paper form is irregular. He must therefore be rejected.
11.7.1. When transmitting electronically,
Do you need to sign electronically and how?
Under section 48 of the Public Procurement Code, a candidate may have to forward his offer electronically. It is necessary not to confuse electronic transmission, with the transmission of electronic support (CD-Rom, USB key...) by mail. The latter is, in fact, assimilated to a paper transmission. Regardless of its mode of transmission, for formalized contracts, the dematerialized undertaking must be signed electronically by an authorized person.
To sign electronically, are required an electronic signature certificate and a signature software application. However, the interested party does not need to have a signature software application, if it uses a portal with this feature.
11.7.2. What is an electronic signature certificate?
An electronic signature certificate is an electronic document that aims to authenticate the identity of the signatory person (identity card), guarantee 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 service providers", the Minister responsible for the economy refers to those that meet the interoperability requirements required by the general interoperability repository. The list of categories of electronic signature certificates referred to is published on the website of the Ministry of Economy at the following address: http://www. entreprises.minefi.gouv.fr/certificats.
This list is scalable. It is, in fact, updated as reference is made.
Any e-certification service provider may recognize, by the Minister responsible for the economy, the conformity of its class of electronic signature certificates to the cross-sectoral security repository. To this end, he asks for registration on the list of the above-mentioned certificate categories.
In accordance with the provisions of the order made pursuant to Article 48 I and Article 56 of the Public Procurement Code and relating to the dematerialization of formalized public procurement procedures (72) to electronically sign its application and commitment, the company freely selects a class of electronic signature certificates referred to above. Persons authorized to hire the legal person must have a certificate, which is nominal.
This Order guarantees 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 (TéléTV@, téléc@rte grise, social declarations...).
11.7.3. What is a backup copy and what role does it have?
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.
Pursuant to the above-mentioned decision of 28 August 2006, in parallel to the electronic 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.
11.7.4. What are the duties of the procuring power
in case of dematerialisation?
The procuring authority that uses the dematerialization of the proceedings must, in all cases, ensure the confidentiality and security of transactions on a non-discriminatory computer network. It is recommended to use a buyer's profile regardless of the amount of the market.
11.7.5. How to dematerialize the certificate of thesesibility?
Dematerialization may continue at the time of the issuance of the certificate of thesesibility under section 106 of the Public Procurement Code. An order made pursuant to this article specifies the terms and conditions under which the electronic certificate is issued.
11.7.6. Where to find more information
on the dematerialization of public procurement?
Public order actors can find all the useful information in the legal vade-mecum of the dematerialisation of public markets downloadable on the website of the Ministry of Economy, "public order".
12. When and how to negotiate?
Whenever authorized by the code, the use of dialogue and negotiation, after advertising and competition, can be usefully considered. It must allow, indeed, to obtain a better purchase in accordance with the rules of transparency.
12.1. What assumptions can we negotiate?
12.1.1. Below 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. In order to respect the principle of transparency of procedures, the negotiation must be announced in the consultation documents, in order to allow candidates to take this into account when developing their offer. This negotiation, which can cover all the elements of the offer, including the price (73) , is highly recommended. The use of negotiation with several potential suppliers is possible.
12.1.2. Above formalized market thresholds
12.1.2.1. Contract categories negotiated
Above the community thresholds, the call for tenders is the common law procedure. The negotiated market can only be used in the limited cases listed by the public procurement code.
There are two categories of negotiated markets:
1° Contracts negotiated, contracted after prior advertising and competition (art. 35-I).
Among the markets negotiated after prior advertising and competition, particular attention must be paid to the negotiated markets of section 35.1.10;
These are markets for which only irregular or unacceptable offers were proposed (Article 35.I.1).
An irregular offer is an offer that meets the needs of the procuring power, but is incomplete or does not meet the requirements of the consultation documents.
An unacceptable offer is an offer that meets the needs of the procuring power, but would not comply with the legislation or regulations in force. This may include rules relating to subcontracting, taxation, environmental protection, protection provisions and working conditions, or the course of the procurement process. For example, Act No. 2005-102 of 11 February 2005 on equal rights and opportunities, participation and citizenship of persons with disabilities and its Implementing Decree No. 2006-555 of 17 May 2006 on the accessibility of public-receiving facilities, public-accessible facilities and residential buildings, and amending the Construction and Housing Code, in particular, requires that collective housing buildings and their surroundings be constructed Therefore, an offer that would not meet these requirements must be excluded as unacceptable.
An offer may also be unacceptable, because market allocations after assessing the need to be met do not allow the procuring authority to finance it. It will be noted that this evaluation was realistic (74).
The initial market conditions must never be substantially changed during the negotiation, unless the procedure would be irregular for breach of competition obligations. Can be considered to be substantial the amendments affecting splitting, price change clauses, enforcement deadlines, delay penalties, performance guarantees and, in general, any changes to the initial competitive conditions.
In practice, however, it is difficult to give much room for negotiation: negotiation after an unsuccessful call for tenders affects, in fact, almost always the initial conditions of competition. This particular hypothesis distinguishes itself from other cases of openness of negotiated markets or appropriate procedures, in which it is possible to negotiate everything, including obviously the price.
It is possible to address only one of the bidders of the initial tendering procedure, to some of them or to all.
2° Contracts negotiated without prior advertising or competition (art. 35-II).
This derogatory procedure is particularly framed.
Markets can be shifted according to this procedure, for compelling reasons of urgency, such as those resulting from the need to engage in the search for victims of an aerial disaster or to guarantee the safety of people and goods, following an unforeseen climate event, such as a storm or a sudden flood. An emergency may be described as an imperative, as long as the public purchaser is confronted with unpredictable circumstances of particular gravity, such as, for example, those threatening the safety of persons. The imperative emergency is very strictly interpreted.
It was admitted under the following circumstances:
―for the implementation of the telephone network of a public health institution, due to delays following the unsuccessfulness of the tender procedure implemented (State Council 11 Oct. 1985, General telephone distribution company c/ Centre hospitalier régional de Rennes, n° 38788);
―for the realization of basic security work, conditioning public access to a building as a result of the December 1999 storm, as long as the contracts in question have passed within hours, days, not more than the weeks following the occurrence of the storm (minus answer). JO Ass. nat. 27 March 2000, p. 2025).
On the other hand, she was not admitted:
― for the work of strengthening an electric transformer, even as it caused frequent power cuts in a whole neighborhood of the commune (State Council 23 Feb. 1990, Commune de Morne-à-l'Eau, No. 69588);
- for the work necessary for the realization of a family house by a commune, as long as it was only to minimize the gene caused by the yard to the residents (Council of State, Jan. 8, 1992, Prefect, Commissioner of the Republic of the Yvelines Department, No. 85439);
―for a negotiated market, spent three months after the passage of a cyclone in January 1985 (State Council, Section, 26 July. 1991, Commune de Sainte Marie de la Réunion, req. n° 117717);
- for high school renovation markets, spent two years after the adoption of the regional plan for the renovation of these institutions and despite the unsuccessfulness of the tender procedure (State Council, 1 Oct. 1997, Mr. Hemmerdinger, No. 151578).
It is also possible to use this procedure when only inappropriate offers have been filed.
An inappropriate offer is an offer that does not meet the requirements of the procuring authority indicated in the consultation documents. The presentation of such an offer is assimilable to the absence of offers. The use of negotiated proceedings without competition is possible if the initial market conditions are not substantially altered. A specific report may be requested by the European Commission. The purpose of the Panel is to demonstrate to the Commission that the conditions for the use of this derogatory procedure have been met.
The use of this procedure presupposes that the public purchaser organized the initial consultation under conditions to ensure its success. This would not be the case, for example, if the terms of the consultation for the acquisition of office computers were to result in offers with only portable computers or if, for the acquisition of small-capacity light transport aircraft, the only offers received were only large-capacity transport aircraft.
The use of the provisions of articles 35-II-4 and 35-II.5 can only be considered if the change of provider required the procuring authority to acquire technical equipment resulting in in in incompatibility with the equipment already acquired, or to face disproportionate technical difficulties with respect to the provision or delivery of the initial market benefits.
The similar benefits referred to in section 35-II.6 must be understood as feasible, identically, in accordance with the only technical specifications of the original market. The use of this procedure also implies that the initial market has referred to it and that the initial competition has taken into account the total amount envisaged, including that of similar benefits to be ordered at a later date.
The use of article 35-II.8 is governed by the jurisprudence. Thus, in case C-385/02, the CJCE (in Italian Republic, 14 September 2004) found that the technical reasons justifying the use of this procedure must be demonstrated by the procuring authority. With regard to mastery of work, the Council of State also set the limits of the use of Article 35-II.8 by specifying the following points:
- in the case of the rehabilitation of an existing building, the moral right to respect the work of the original architect does not confer on him a right of exclusivity for work of modifications of the work (CE 13 July 2007, Syndicat d'agglomération nouvelle Ouest Provence / Préfet des Bouches-du-Rhône, n° 296096);
―the procuring authority is always responsible for determining that the technical reasons invoked effectively prevent it from entrusting a new market to another master of work than the holder of the previous market.
12.1.2.2. What is the role of the tender board
territorial authorities in the negotiated procedure (art. 66)?
For local markets, 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, since the code states that the tender board of territorial authorities and their public institutions assign the market. It is only in terms of competitions and mastery contracts (CMP art. 70 and 74), for which the market is awarded by the legislative assembly.
In the event of an imperious emergency, the market may be awarded without prior meeting of the tender board.
12.2. 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 must allow the buyer to determine the offer with the best value for money, i.e. the best offer that can be made at that time, according to the needs of the buyer and the economic and technical capacities of the companies.
Negotiation does not allow to change the main characteristics of the market such as the subject matter of the market or the selection criteria for applications and offers. But it leaves the public purchaser the opportunity to negotiate freely by negotiation the contents of the benefits and the adaptation of the price to the benefits ultimately chosen, unlike an open or restricted tendering procedure, where the specifications are fixed unilaterally and intangiblely, before the launch of the consultation.
Although the procuring power cannot substantially alter the market conditions, as defined for the initiation of the procedure, it has some flexibility.
It is thus possible to negotiate on:
- the price: may, for example, be negotiated the cost of acquisition, the cost of storage or processing, the price of accessories, options, spare parts, guarantees, maintenance, insurance, transportation, etc.;
― quantity: may be negotiated the necessary quantity, the frequency of orders, the structure of discounts granted, etc.;
quality: may be negotiated, sufficient or, on the contrary, overestimated in terms of needs, its impact on the price if the requested quality level is changed upward or downward;
― the deadline: may be negotiated the impact on the price of the requirements in terms of time, the share of the transport and various formalities, etc.;
– guarantees of good market performance (penalties, termination...), although these elements are very difficult to negotiate, when negotiations are conducted with several candidates.
The attention of buyers is drawn to the fact that a negotiation should not be confused with a merchanting. Imposition to its partner an unrealistic price is to expose the market to the risk of failure of the company or that of the subsequent transfer of expensive adversaries. Proper management of public money requires that negotiations do not confine themselves to the price and use buyers trained in this technique.
12.3. 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 is the transparency of the procedure, which must be conducted in accordance with the industrial and commercial secrecy surrounding the know-how of candidates.
In order to meet this dual constraint, the purchaser must ensure the traceability of the exchanges made with each candidate, as well as to maintain them at the same level of information.
Clearly, it is always possible to negotiate the elements that the candidate puts in his offer. On the other hand, the principle of intangibility of the specifications makes it much more delicate. The purchaser must be able to justify, for any modifications made to the initial specifications and the initial offer of the selected candidate, their interest, both technical and financial and the respect for the equal treatment of the candidates. It is therefore advisable to establish a specific document, which will clearly identify the points that have been changed. Compliance with the principle of equality must lead the buyer, in the event of changes in the terms of reference, to invite all candidates to submit a new offer on the basis of these amendments. These principles are applicable to all negotiated procedures, even passed without competition. In any case, certain provisions of the specifications will be deemed intangible. It is up to the procuring authority to report them to the candidates prior to the commencement of any negotiations.
No legislative or regulatory provision imposes on an adjudicator power wishing to enter a negotiated contract to indicate the time limit for which the candidate is required by his offer (State Council 20 May 2009, Minister of Defence, No. 316602). However, it is recommended that buyers set this deadline.
In formalized procedures, public buyers cannot freely choose the economic operators to negotiate. The code states that they may limit the number of such notices, provided that they have previously announced it in the notice of public appeal to competition, if such notice has been published. This faculty is governed by community law, which prohibits the setting of a minimum number of candidates below three. In practice, if only one or two candidates present, the buyer may continue the procedure. Public buyers must negotiate with all candidates admitted to this negotiation.
In the markets passed according to a suitable procedure, public buyers are free to choose the operators with whom they wish to engage in the negotiation. They may, without being required, indicate the number or criteria of choice, in a notice of public appeal to competition or in the documents of the consultation; in this case, they must comply with the references. They remain, in all cases, held to respect the principles of freedom of access to public order, equal treatment of candidates and transparency of procedures.
13. How to conduct a dialogue
competitive (art. 67)?
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. The competitive dialogue is, in fact, a rather long procedure.
Adjudicative powers may be unable 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, some communications projects, or more generally for projects for which the buyer does not have sufficient visibility.
It can also be used as part of a design-realization procedure for building rehabilitation operations (art. 69) or for the procurement of energy performance contracts (75).
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 outset, be enclosed in technical specifications too specific.
It offers public buyers greater 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 develop their offers on the basis of a functional program. In this document the buyer describes, in practical terms, his expectations and the results he wants to achieve.
At the end of the dialogue, the buyer must have a market with the main provisions to manage and pay this market (duration, price form, revision, discounts, penalties, termination).
It is recommended that the procuring authority establish a maximum number of candidates admitted to dialogue by indicating in the market notice. 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 cannot be less than three (Article 67-I of the Public Procurement Code). If the number of candidates is less than three, the procedure may however follow its course.
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, thanks to the dialogue that each candidate will have with the procuring power. A candidate may need additional information on the site (e.g. the characteristics of the electrical installation). The procuring authority may ask each candidate for explanations on the content of his proposal and the amendments, allowing for better benefit from the potential of this proposal.
As long as it is provided for in the notice of public competitive appeal or the documents of the consultation, the dialogue may take place in as many successive phases as are necessary for the purchaser to define its 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 of the candidates that he considers inappropriate to his or her need, based on these criteria. He then informed the candidate(s) concerned and continued the dialogue with the remaining candidates.
Throughout the dialogue phase, the procuring authority may not reveal to the other candidates any 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 the current suspension period from notification to these candidates of the award decision, the contract may be signed.
The development of proposals by candidates throughout the competitive dialogue can lead to high costs that can deter potential competitors. It is therefore in the interest of buyers to provide for the payment of compensation premiums, as well as to invite them to article 67-X of the code, to the extent of the effort requested. The bonus will generate real competition, prompting the largest number of economic operators to participate in the dialogue.
The proceedings may be declared without action for reasons of general interest, but the attention of public buyers is drawn to the limits attached to this faculty: these grounds must be real and are likely to be controlled by the judge. As the risk of impairing industrial or commercial secrets is increased in the competitive dialogue process, the buyer's responsibility may be more easily engaged.
14. How to choose the supply economically
The most advantageous?
First of all, the purchaser must be in the most favourable economic and qualitative conditions. In particular:
― 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 unwarranted requirements, in order to create optimum competition;
― knowing and adapting its procedure to price training mechanisms, choosing the right time and selecting the form of prices (ferm, up-to-date, revisable) guaranteeing the best economy of its purchases throughout the market.
It is recommended to select the offers by applying several criteria. The "best-reading" criterion is preferable to that of the "less-dizing". The "price criterion" is, in fact, only one criterion among all possible criteria of choice set out in section 53.
The most advantageous offer is not assimilable at the lowest price, which of course should not lead the buyer to reduce the importance of the price criterion in the analysis of offers. The buyer 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, both by suppliers and by users, of the terms and conditions of execution of the market.
Regardless of the amount of the market, buyers must ensure that abnormally low offers are detected. An offer can be described as abnormally low, if its price does not correspond to an economic reality. However, regardless of the amount of the market, 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. Retaining an abnormally low offer does not in itself present any legal risk. The risk weighs mainly on public money, it relates to the possible failure of the holder thus retained and to the costly admissions, to which the buyer must consent to make possible the performance of the benefits.
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.
14.1. What are the criteria for choosing the offer
economically the most advantageous?
Offerings must meet the requirements defined by the procuring authority, as the materializing specifications. 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 the company or on the memory of a past experience for such 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 for attribution which then allow to choose the offers.
14.1.1. How to choose the selection criteria
offers (art. 53)?
The public purchaser may freely choose the selection criteria for offers, provided these criteria are not discriminatory and remain related to the subject matter of the market:
– it is possible to choose only one criterion, given the purpose of the market. This criterion is then necessarily the price. However, in the case of a complex market, the fact that only retaining the price criterion can be contrary to the provisions of Article 53 of the Code (Council of State, 6 April 2007, Department of Isère, No. 298584);
– it is possible to choose several criteria. The price is then not a mandatory criterion if the criteria selected allow to choose the most economically advantageous offer, given the purpose of the market (State Council, 28 April 2008, commune of Toulouse, no. 280197).
In some cases, the price may, in fact, result from the application of a scale established by the administration (e.g., archaeological excavations). In other cases, which are exceptional, however, the price may be indicated by the procuring authority in the terms of reference, where the public price of the service is well known to the administration and that it wants to impose a lower price on the service providers, which would not necessarily be obtained by the combined application of all the criteria announced in the consultation file. Competition is then done on other qualitative criteria or deadlines. But the risk of this approach is that of setting a price too low to generate bids or bids or that could constitute an obstacle to competition (eviction of the small to the large).
But most often, the price is part of the criteria announced by the public purchaser, but not necessarily at the top of these criteria. In the case of complex or technically difficult to achieve benefits, the price weighting may be lower than that given to other technical criteria to determine the reliability or performance of the offers. There are other assumptions where it is the very nature of the benefits, which leads to giving the price criterion a less weight than that applied to the other criteria. This can be done for example for sensitive services such as the transport of blood products or products derived from transplantation, where the safety and speed criteria for transport can be preferred over the price criterion.
Pursuant to the provisions of sections 52 and 53 of the Public Procurement Code, the verification of the ability of candidates to deliver or execute products or benefits from the market and then the award of the contract is two different operations. The bids cannot therefore be judged on criteria that fall within the scope of the applicants.
The choice criteria of offers must be the translation of the buyer's need and allow the choice of the most economically advantageous offer. The search for the most economically advantageous offer is, in fact, an obligation for the public buyer founded:
either on a comparison of offers, given the choice criteria defined according to the object of the market freely weighted, by the buyer. These criteria must be used to compare offers that best meet the buyer's requirements. Many other criteria may seem justified: the overall cost, the delivery time, the guarantee, the technical quality, the price...;
either on a comparison of the prices requested to the different candidates, to retain the offer with the lowest amount. Despite the fact that it is often a unquestionable justification of choices, taking into account the price should not result in excluding the other criteria from the game. The purchaser can only rely on this criterion, if the subject-matter of its market justifies it, for purchases of common supplies, for example.
The list of criteria listed in section 53 is not exhaustive. Other criteria may be taken into account, but their choice must be justified by the purpose of the market or its conditions of execution.
The criterion may not be purely economical. It can be, for example, environmental (Cour de justice des Communautés européennes, 20 sept. 1988, Gebroeders Beentjes, p. 31/87, Rec. 1988, p. 4635). It can also be an aesthetic criterion (Conseil d'Etat, 28 Apr. 2006, commune de Toulouse, n° 280197, Conseil d'Etat, 5 November 2008, commune de Saint-Nazaire, n° 310484).
The criteria must always be objective and operational. They can never be discriminatory, so that the award-winning decision does not reveal any part of an arbitrator or discretion. The administrative judge censures the criteria leading to an arbitrary or subjective choice (Council of State, 28 Apr. 2006, Commune de Toulouse, aforesaid).
The bid selection system put in place by the buyer must allow candidates to know what qualities will be appreciated, what is the respectful weight of each of them and, in general, all the elements that will be used to judge the offer and which, if known, could have influenced the preparation of their offer.
The applicable game rules must be known in advance by bidders. It is also preferable to specify those requirements that will have a preponderance on others.
In order to allow candidates to be "reasonably informed" and to interpret the criteria of attribution in the same way, the rather subjective character of certain criteria such as "the technical value of the offer" or its "aesthetic character", requires the public purchaser to define, with precision, what he intends by this criterion by using sub-criteria. These sub-criteria must also be objective, operational and non-discriminatory.
To be able to make an offer that meets the buyer's expectations, candidates must be able to know:
– technical or economic characteristics that provide an advantage to the buyer, which are set out in the form of criteria and sub-criteria;
the weight of these criteria and subcriteria;
― the specific information to be provided by candidates for each of the criteria and sub-criteria.
The procuring authority is not required to mention the methods of notation in the notice of advertisement or the regulation of the consultation. However, the choice of the method being decisive on the outcome, it must respect the basic principles of public order and be able to justify it before the judge. In the interests of good administration and in order to avoid possible disputes, it is recommended to ensure the greatest transparency of the rating methods.
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.
In particular, buyers will need to ensure that a purchase made for an economy is not proven to be more expensive. This is why the overall cost of use or profitability should, if any, be among the criteria for choosing the most economically advantageous offer.
The purchaser cannot modify the criteria for the selection of the offers after the filing by the candidates of their offers (State Council 1 April 2009, Société des autoroutes du sud de la France, n° 315586). Nor can it unilaterally modify the offers of the candidates (TA Limoges, 20 November 2008, SARL Agriate counsel, no 0700452).
14.1.2. How do I use the bid selection criteria?
There are two criteria classification methods: hierarchization and weighting.
― hierarchization classifies criteria in descending order of importance and analyses them independently of each other;
― the weighting affects each of the criteria of a quantified coefficient. The most advantageous supply is then evaluated globally, 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 terms of weighting are the freedom of the buyer.
The principle is that the selection criteria for bids must be weighted, excluding competitions and contracts passed according to an appropriate procedure. The use of prioritization is only possible if weighting is impossible, due to the complexity of the market. The procuring power must be able to prove this impossibility (Council of State, 7 Oct. 2005, Communauté urbaine Marseille-Provence Métropole, n° 276867). In practice, as long as each criterion can be affected by a coefficient, if any expressed by a fork, such a demonstration is very difficult (State Council, 5 Apr. 2006, Minister of Defence, No. 288441).
Moreover, the weighting of the criteria is a more practical use than hierarchy, as it facilitates the choice of the most advantageous offer and more surely guarantees the respect for equality of candidates. It allows each company to know precisely the appreciation that will be made on each item of its offer.
Its use is therefore recommended, even in cases where it is not mandatory, e.g. for markets passed according to an appropriate procedure. As part of these procedures, the fundamental principles of public order involve the appropriate information of candidates on the criteria for the award of a public procurement, upon the initiation of the contract award procedure, in the notice of public appeal to competition if it exists, in the documents of the consultation. This appropriate information should also cover the conditions for the implementation of these criteria. It is also, therefore, the procuring authority to specify the criteria for the award of the contract and the conditions for their implementation, in accordance with the terms and conditions appropriate to the object, the characteristics and the amount of the contract concerned (76).
It is not possible to declare an unacceptable offer, for the sole reason of its price, while it would be in the final ranking, after weighting, better classified than competing offers. If the best classified offer exceeds the budget available to the procuring authority, the procedure must be declared without further action and resumed. Such a situation must be avoided, by affecting an adequate weighting of the price criterion, that it should not be undervalued if the procuring power intends to stick to a limited budget.
14.2. How to integrate concerns
sustainable development in public procurement?
By articles 5, 6, 14, 45, 50 and 53, the code allows the procuring authority to take into account environmental, economic and social requirements when buying public 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. The procuring authority must question the possibilities of integrating requirements in terms of environment, working conditions and the overall cost of purchasing.
14.2.1. Environmental concerns
Environmental concerns can also be integrated into the procurement process at different stages.
– at the time of definition and expression of needs, section 6 on technical specifications defines environmental requirements in the consultation documents. 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, which take into account the life cycle and environmental impacts of products and which are established by the public authorities in consultation with interested parties, such as distributors and industry, consumer associations and environmental protection.
– at the time of nomination, section 45 authorizes public purchasers to examine the know-how of candidates in the field of environmental protection through the assessment of their technical capabilities.
― at the time of tendering, section 53 allows public buyers to take into account one or more environmental criteria, even though it is not purely economic criteria (Cour of Justice of the European Communities, 17 Sept. 2002, Concordia Bus Finland Oy Ab, aff C-513/99). An unclear criteria of an economic nature may be of a nature to determine the value of the offer for the public purchaser, for example, for markets in which the public community does not pay a given sum to its contractor. This is the case, for example, of urban furniture contracts, for which the judge admitted the use of an aesthetic criterion (Council of State, 5 Apr. 2006, Commune de Toulouse, aforementioned).
This criterion must always be linked to the subject matter of the market, expressly referred to in the notice of advertisement or the documents of the consultation, and respect 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) may be an effective means of integrating environmental protection at the technical specifications stage, without the procuring power necessarily having to specify in a precise manner its requirements in this matter. 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.
― with respect to market performance, Article 14 allows buyers to impose environmental performance conditions in the specifications. These conditions must not have a discriminatory effect. As an example of possible conditions of execution, we will mention: delivery/packaging in bulk rather than in small packaging, recovery or reuse of packagings, delivery of goods in reusable containers, collection and recycling of waste products, organic products, computer solutions labeled Energy Star or equivalent, recycled paper.
These tools allow public buyers to set themselves the level of environmental requirement they want to see reached in the execution of their markets. They cover the entire field of public purchase without restriction of amount or object.
A procurement approach that respects the environmental aspects of sustainable development can be mandatory. Thus, the Directive of the European Parliament and the Council on the provision of uniform labelling and information on products, energy consumption and other energy-related products requires public buyers to take into account, above the thresholds of formalized procedures, the energy performance of the products they acquire.
For more information, please refer to the guide published by the European Commission, "Buy Green: a Green Public Procurement Manual" (77), as well as to its interpretative communication on public procurement for a better environment (78).
14.2.2. Social concerns
In social matters, the procuring authority has an interest in using mainly the condition of execution of Article 14, which allows it, for example, to perform the benefit by integrating hours of integration work or any other social consideration: fundamental recommendations of the International Labour Organization, promotion of diversity and equality of opportunity... (79) (80).
The procuring authority indicates, in the notice of public competition appeal or the documents of the consultation, the requirement for an enforcement clause, as detailed in the terms of reference.
The integration of social clauses, especially those intended to promote diversity, can meet at least one of the following objectives:
― the insertion of persons who are remote from employment, in particular by the assignment, in a reasonable proportion, of a certain number of hours worked to specific audiences in a situation of precariousness or exclusion (hours of insertion work): unemployed, particularly long-term, beneficiaries of social minima, young people with a low level of qualification or workers with disabilities beyond national legal requirements;
– the implementation of training actions for these audiences;
- the promotion of fair trade.
For example, the procuring authority may include in its market a clause that provides that the attribute will, for the purposes of the market, recruit by means of anonymous curriculum vitae, use the interns pooling technique or conduct awareness-raising actions of their subcontractors and suppliers.
The procuring power should ensure, in general, the balance of the measure: the proportion of labour in the market, the availability of integration structures by economic activity (SIAE) involved in the sector of activity concerned and in the territory of execution of the service (works or services) or aid of a "facilitator".
The procuring authority can usefully be assisted by the "facilitator", a person belonging to or linked to the public service of local employment (local integration plan for employment (PLIE) or employment house). He advises the purchaser in the development and drafting of the clause, informs the bidder companies of possible local responses (direct hiring, provision of staff by structures of insertion by economic activity, co-treatment or subcontracting with insertion companies), then controls the execution of the clause and assesses its result.
It is recommended to formulate such a clause in a number of working hours, in the case of insertion. These clauses should be relevant, socially useful and well-targeted, and should be drafted in accordance with the following rules:
―to offer everyone the opportunity to satisfy the clause;
― do not set mandatory terms for the implementation of the clause, but offer several possibilities. Thus, for example, if an invitation can be made to candidates to subcontract a lot or part of the market to approved insertion structures, on the other hand, is illegal the clause imposing on the market holder to subcontract to a State-approved integration undertaking certain benefits;
- not discriminate against potential candidates and impose equally on all competing companies (81);
- not limiting competition.
14.3. 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.
15. How to complete the procedure?
15.1. Candidate information
The principles of equal treatment and transparency of procedures impose obligations with respect to the information of candidates.
The appeal directive introduced powerful incentives to candidates' information. Thus, in accordance with the period of suspension of the proceedings (see point 15.2), the procuring authority may limit the period of time, in which the contract or framework agreement may be subject to a judicial remedy after signature, or even close certain remedies.
15.1.1. Information of candidates in formalized procedure
For markets that have been contracted on a formalized basis, with the exception of contracts that have been contracted on a negotiated basis without prior competition, the public purchaser must proceed with two sets of information (art. 80) (82).
15.1.1.1. The information of the rejected candidates,
at the stage of the examination of applications
Upon completion of the examination of applications, the public purchaser must inform each unsuccessful candidate of the rejection of the application and the reasons for the rejection.
15.1.1.2. Information from bidders,
whose offer was rejected
As soon as the award decision is made, the public purchaser must notify each of the bidders, whose offer has not been accepted. The notification of the contract award decision or framework agreement shall include the following information:
– the decision to reject the offer and the reasons for its rejection;
- the name of the attribute(s) and the reasons that led to the choice of their offer;
― the minimum period to be met by the purchaser, before signing the contract or framework agreement.
If the purchaser failed to inform the rejected candidates of the rejection of their application and the reasons for the rejection, the buyer must correct this omission by notifying them the award decision. It shall, at the same time, communicate to them the reasons for rejecting their application, as well as the name of the attribute(s), the reasons that led to the choice of the offer and the minimum period of suspension of the proceedings (83).
15.1.2. Information of candidates in adapted procedure
Candidates' information is not mandatory for markets that have been passed according to an appropriate procedure. It is recommended, however, because it allows the contract to be secured legally by closing the course of the appeal for a contractual reference, as long as it is accompanied by compliance with the period of suspension of the proceedings Article L. 551-15 of the Administrative Justice Code.
The case of framework agreements and dynamic acquisition systems.
The notification of an award decision is not mandatory, in the case of contracts placed on the basis of a framework agreement ("sequent markets") or a dynamic procurement system ("specific markets").
However, it is recommended that the procuring authority notify the award decision as soon as the decision is taken, to all holders of the framework agreement or dynamic acquisition system. If he has complied with the period of suspension of the proceedings, he thus closes the path of the appeal for a contract with respect to the market (84) and legally secures his contract.
The award decision must include the following information:
the name of the market holder;
– the motives leading to the choice of his offer;
– the duration of the minimum period it requires to respect before signing the contract.
15.1.4. Other markets
In the case of negotiated contracts without prior competition, passed under the provisions of Article 35-II of the Code, the procuring authority is not bound to any obligation of information of the candidates.
Nevertheless, it may close the path of the contractual referee by publishing a notice, mentioning its intention to conclude this contract, in the Official Journal of the European Union and respecting the period of suspension before signing it.
15.1.5. Information at the request of candidates
A provider, whose application has been rejected, may request in writing, after the award of the contract, the reasons for the rejection of the application or its offer, the name of the attribute, the characteristics and benefits of the offer chosen.
The purchaser is required to provide the information to the buyer within 15 days of receipt of the request (art. 83). If this information has already been made (which is normally the case in formalized procedures) by notifying the award decision under section 80 of the code, the procuring authority is not required to do so, provided that the required information is actually included in the notified decision.
15.2. The period of suspension of proceedings
15.2.1. Markets above community thresholds
After the contract award decision is sent, the purchaser must meet a minimum deadline before signing the contract. This deadline must be specified in the notification of the decision, it is intended to make possible the exercise of a pre-contractual remedy.
The award decision can be sent by mail or electronic. The deadlines are as follows (85):
― where the decision is sent by post to at least one candidate, the minimum period is sixteen days between the date of the award decision and the signature of the contract;
– when the decision is sent electronically to all candidates, the minimum time limit is reduced to at least eleven days.
15.2.2. Markets under a framework agreement
or a dynamic acquisition system
Compliance with these deadlines is not mandatory for contracts that have been placed on the basis of a framework agreement or a dynamic procurement system. However, for these contracts, once the purchaser has complied with, after sending to the holders of the framework agreement or the dynamic procurement system a decision to award under the conditions set out in the preceding paragraph, the minimum deadlines mentioned above, subsequent or specific contracts may not be contested by the contractual referee (86).
15.2.3. Markets in suitable procedures and excluded markets
For contracts passed in appropriate proceedings and contracts excluded from the code, the procedure is defined by the public (art. 28).
One of these terms may be to provide for a reasonable period of time between the information of the candidates who have been ousted from the rejection of their offer and the signing of the contract, in order to allow a candidate who would have irregularly deviated from making an appeal before the conclusion of the contract. This period is determined by the buyer according to the market characteristics.
Buyers may also have an interest in voluntarily striving to certain formalities, to avoid the contract's disputes after signing. They must then (87):
― send to the Official Journal of the European Union a notice concerning the intention to conclude the contract. This notice then replaces the award decision. It must be established in accordance with the community model.
∙ respect a period of eleven days, between the date of publication of this notice and the signing of the contract.
If these two formalities are complied with, the contract cannot be challenged by the contractual reference provided for in articles L. 551-13 s. of the administrative justice code, transposing Directive 2007/66/EC of 11 December 2007 (88).
In this case, the candidates who have been ousted have only the pre-contractual application.
15.3. The notification
A contract or framework agreement of an amount greater than the procedural waiver threshold shall be notified to the market owner, before any commencement of execution (89) (art. 81).
The public purchaser will ensure that the contract is notified, as soon as the period of suspension of the proceedings is exhausted. The practice of delaying this notification, without serious reason and without informing the company of the term of this delay, is to be prohibited.
For contracts that have been contracted on a formalized basis, the notification consists of sending a copy of the contract, signed by the competent authority. From the date of notification to the licensee, the contract begins to produce its legal effects. The buyer therefore has any interest in knowing in a certain way the date of receipt of the notification by the holder of the contract, for example by registered mail with acknowledgement of receipt, by direct handover to the holder against receipt or by e-mail via the buyer's profile if it allows to obtain proof of receipt. The licensee shall wait for receipt of the notification, before commencing the contract, for failing which the benefits performed will not have any legal basis and their payment may be refused.
An additional step is taken between the signature and the notification, in cases where a legality check of the contract is provided. Territorial authorities and their public institutions, as well as social and social public institutions (90). This legality control is governed by specific legislation: general code of territorial authorities for territorial authorities (articles L. 2131-1 and following for municipalities, articles L. 3131-1 and following for departments, articles L. 4141-1 and following for the regions), and article L. 315-14 of the Code of Social Action and Families for Social and Medical Public Institutions
The transmission carried out within the framework of the monitoring of the legality of the acts of the territorial authorities must relate both to the deliberation of the legislative assembly authorizing the executive authority to sign the contract, and to the contract signed (91). All contracts and framework agreements in an amount greater than or equal to the threshold fixed by the Decree No. 2008-171 of 22 February 2008 relating to the threshold provided by the general code of territorial authorities for certain provisions applicable to public procurement and framework agreements (92) must be forwarded to the representative of the State for the exercise of the rule of law.
It is therefore necessary to proceed in several successive steps:
- choice of the contract holder;
• information of other candidates for rejection of their offer;
- deliberation authorizing the signature of the contract;
- transmission of this deliberation to the control of legality;
- conclusion (signature) of the contract;
- transmission, if any, of the contract to the control of legality;
- notification of the contract to the holder;
– beginning of execution.
When the contract is subject to the control of legality, the notification can only intervene after the transmission of the necessary documents to the services of the representative of the State. The notice to the holder is then accompanied by the accused of transmitting these documents.
15.4. Notice of attribution
The publication of the notice of award in the Official Journal of the European Union and in accordance with the forms established by Community Regulation (EC) No. 1564-2005 of the Commission of 7 September 2005 triggers the thirty-one-day appeal period of the contractual referendum (93). These reviews are available at http://simap.europa.eu/buyer/forms―standard_en.html.
In the absence of a notice of award, this period of appeal is extended to six months after the contract is signed.
Publication of an award notice is mandatory for supplies and services markets in excess of community thresholds.
The procuring authority must publish the award notice within a maximum of 48 days from the date of the market notification (94), under the same conditions and using the same advertising means as those used in the notice of public tender to competition.
The publication of an award notice is optional for contracts passed according to an appropriate procedure. The interest of this publication for buyers is to reduce the appeal period from six months to one month.
In addition to the contractual reference, a contract could be contested by the appeal for validity created pretorically by the administrative judge (Council of State, Ass.16 July 2007, Société Tropic Travaux Signalisation, n° 293229). This appeal is open within two months of appropriate advertising measures. The publication of such an award notice may constitute an appropriate publicity measure to ensure that this period of appeal is carried out.
16. Do not omit advertising obligations a posteriori
The public procurement code requires buyers to publish, each year, a list of contracts concluded the previous year, as well as the names of their attributes.
The terms and conditions for the application of this Article are defined by the Order of December 26, 2007 on the list of contracts entered into the previous year by the procuring authorities and procuring entities (95).
― the order leaves jurisdictions the choice of support to communicate the list of contracts concluded the previous year: publication on the buyer profile or the community website, publication in the press, etc.;
- markets below the procedural exemption threshold are placed outside the scope of this census;
– markets 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 tranches, the amounts specified by the Order of December 26, 2007. Also have to appear on the list the object and date of the market, as well as the name of the attribute, mentioning the postal code of the market holder.
17. 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 authorities, i.e., public money (arts. 92 to 100, for example).
17.1. Direct payment of the subcontractor
The contractor's use 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 small and medium enterprises.
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 derived from the Act No. 75-1334 of 31 December 1975 amended on subcontracting and 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);
(arts. 112 and 113);
- acceptance of the subcontractor and the approval of its terms and conditions of payment must be pronounced before the execution of work paid by 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 result is that special acts of subcontracting do not necessarily include all references to the contract of subcontracting (or subcontracted), which fall under the private law relationship between the licensee and its subcontractor;
― the first-rate subcontractor is entitled to direct payment, if the terms of acceptance and approval are satisfied and the amount of its receivable is at least 600 euros (Articles 115 to 117). Any waiver of direct payment shall be deemed not in writing. Any form, clauses, stipulations and arrangements that would have the effect of failing the provisions of the law (articles 7 and 15 of Act No. 75-1334 referred to above).
Subcontractors can be settled quickly by simplifying the payment procedure. The subcontractor must send his request for payment to the market holder, as well as to the procuring authority or to the person designated by him in the market.
The licensee shall have a period of time to leave days, to give its agreement or to notify the subcontractor, as well as to the procuring authority or to the person designated by it in the market. The procuring authority shall make the payment of the subcontractor within the period provided for in section 98.
This period is short from the date of receipt 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.
17.2. Payment of advances to public contract holders (96)
The purpose of the award of advances is to facilitate the execution of contracts and to ensure equal access to markets between companies, with sufficient cash to start the delivery of benefits and those that do not have it.
These include small and medium-sized enterprises and the majority of associations working in economic sectors.
The amount from which this advance is obligatoryly granted to the holder or subcontractor of a market is 50,000 euros (tax excl.) (art. 87 of the CMP). However, this obligation is imposed only if the time limit for contract execution is more than two months. The minimum advance amount is set at 5%.
The calculation of the amount of the advance is based on the amount of the benefits performed by the licensee on its own.
If the period of execution is less than or equal to twelve months, the amount of the advance is 5% of the amount (excluding subcontract) of the market or the firming slice, or the minimum amount of the order form or, if not, of the order form.
If this duration is greater than twelve months, the advance is equal to 5% of a sum equal to twelve times the amount (excluding subcontract) of the market or the firming slice or the minimum amount of the purchase order or, if not, of the purchase order, divided by that time expressed in months.
For purchase orders, the calculation is different, depending on whether or not the market has a minimum amount.
In the case where the market provides a minimum amount:
- if the duration of the contract is less than twelve months, the amount of the advance is set at 5% of the minimum amount, all taxes included, of the market;
― if the duration of the market is greater than 12 months, the amount of the advance is set 5% of a sum equal to 12 times the minimum amount of the market, divided by the market duration expressed in months.
In the case where the market does not provide a minimum, maximum or a minimum and maximum fixed in quantity:
―if the duration of the order is less than 12 months, the amount of the advance is set at 5% of the amount, all taxes included, of the order form;
―if the duration of the order is greater than 12 months, the amount of the advance is set at 5% of a sum equal to 12 times the amount of the order form, divided by the duration of the order form expressed in months.
When the amount of the advance is less than or equal to 30%, territorial authorities have the option of conditioning the payment of a first-time guarantee.
The market may provide that the advance paid exceeds 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.
When the licensee is a group of companies, the right in advance is assessed in relation to the total amount of the contract, the instalment or the purchase order and not in relation to the amount of the share of the benefits to be performed by each of its members. Similarly, in the event of subcontracting, the advance plate is the amount of the subcontracted portion.
The terms and the pace of advance repayment are provided in the market. Reimbursement of the advance must be completed, where the amount of benefits performed by the company that has benefited from it reaches 80% of the amount (tax incl.) of the benefits entrusted to it (sections 88 to 90).
Advances are a means of financing the economy. The advance is a right for businesses, which can however give up. This renunciation, however, should not result from pressures that the procuring authority would exert on its suppliers. Such behaviour would be unacceptable from public buyers.
The amounts fixed by the code are floors. It is always lawful for the public purchaser to decide the payment of advances in a higher amount. This practice can be useful, especially in times of economic difficulties, to help companies implement the market in good conditions.
17.3. Payments to public contract holders
Unlike advances, deposits are paid for benefits that are being performed in the course of the market: the deposit pays a service done. The buyer must verify that the benefit was made. This verification is found by a written document that it establishes itself or verifies and declares to accept. The payment period for deposits is not more than three months; in the cases provided for in section 91, it may be reduced to one month.
The last deposit must not be confused with the balance, which, for the contracts of work, can only be determined at the time of the general deposit.
17.4. The supervision of the required financial guarantees
Public procurement
Public procurement may provide for, at the expense of the holder, a security deduction whose amount cannot exceed 5% of the initial amount of the contract increased, if any, of the amount of the avenors (art. 101). The deduction is taken by fractions on each of the payments, except when these payments are of an advance, the basis for calculation is different. This guarantee is intended to cover reserves at the receipt of benefits.
In the absence of the formulation of such reservations within the warranty period, this deduction shall be refunded no later than one month after the expiration of the warranty period. It would be unacceptable to delay the payment of the market holder without justification. In the event of a delay in repayment, moratoria interests are paid in accordance with the terms defined by the decree referred to in Article 98 of the Public Procurement Code (97).
The holder may, for the entire duration of the contract, substitute a first-time guarantee or, if the procuring power does not oppose it, a personal and solidarity bond to the retention of the guarantee. This option must 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, as well as the deduction, is calculated on the total amount of the contract, including the amendments. The amount of this first-demand guarantee or personal and solidarity bond may not exceed the amount of the deduction, if applied. In the event of the replacement of the deduction by a first-demand guarantee or a personal and solidarity bond in the course of a contract, the amounts already deducted under the deduction are transferred to the holder after the replacement guarantee is made.
When the conditions provided by the code are met, the release of the guarantees, regardless of the guarantee regime, proceeds from the decision of the only public buyer and not the public accountant.
17.5. The obligation for the procuring power
to meet an overall payment period
Article 98, in its drafting Decrees No. 2008-407 of 28 April 2008 and No. 2008-1355 of 19 December 2008, states that payments of benefits of a public market must be made, except for the exceptions listed in the same article, within a maximum period of thirty days for the State, thirty days from 1 July 2010 for the markets of the local authorities (98) and fifty days for the establishments of the military health service, public health institutions and social and meco-social institutions.
The overrun of the payment period shall be in full right and without any other formality, for the holder of the market or the subcontractor, the benefit of moratorium interest, beginning on the day after the expiry of the period.
The modalities for the implementation of the overall time limit for payment of public procurement and calculation of moratoria interests are detailed by the Decree No. 2002-232 of 21 February 2002 modified by Decree No. 2008-1555 of 31 December 2008 and the general circular of application of 13 March 2002 (OJ of 6 April 2002).
The mechanism for the rate of moratorium interest to be applied in the event that the maximum period of payment is exceeded is as follows:
- for the markets passed by the health institutions of the armed forces and public health institutions, the rate of interest moratoriums is that of the legal interest increased by two points, except for the formalized markets if the rate of interest moratoriums is not referenced in the market: in this case, the rate referred to in the following paragraph applies;
- for other markets (99), the interest rate of the main refinancing facility applied by the European Central Bank is applied to its most recent main refinancing operation carried out prior to the first calendar day of the semester of the calendar year in which the moratorium interests began to run, plus seven points. This rate is updated on 1 January and 1 July of each calendar year.
In all cases, for the liquidation of moratorium interests, the rate to be taken into account is the rate in force on the date on which the moratorium interests began to run: a single rate applies, for the duration of the market.
The formula for calculating moratorium interests is as follows:
You can consult the table in the
JOn° 303 of 31/12/2009 text number 90
Additional moratoria interests are due, where the mandate of moratorium interests has not intervened no later than the 30th day after the date of payment of the principal. Their calculation formula is:
You can see the table in the OJ
n° 303 of 31/12/2009 text number 90
The payment of moratoria interests is by law, due by public authorities as long as the maximum payment period is exceeded. It is not permissible to seek to escape the payment of moratorium interest due, on the ground that companies do not dare to request their payment.
Tarder has to pay to a company what is due to it endangers it, especially if it is a small or medium-sized business.
This delay is also extremely costly for the public purchaser, due to the very high amount of moratorium interests (100).
Specific deadlines apply as part of a specific device, as provided by theArticle L. 443-1 of the Commercial Codeindependent of the decree of 21 February 2002. The deadlines set out in this section apply, since Act No. 92-1442 of 31 December 1992 relating to the payment times between companies, to any "producer, reseller or service provider", which is likely to concern public persons, when engaged in commercial activities within the meaning of the Commercial Code.
17.6. Payment of advance payment
Under section 17 of the Public Procurement Code, incentives may be inserted in the markets, for the purpose of improving delivery times, seeking better quality of benefits or reducing production costs.
Section 20.2 of the Terms of General Administrative Clauses of Public Works Contracts, approved by the Order of September 8, 2009 (101), states that "If the particular documents of the market provide advance premiums, their assignment shall be made without the licensee being required to apply them, whether it is a premium for the performance of all works or premiums for certain works, parts of works or sets of benefits that are subject to the specific dates or set of benefits " Equivalent provisions are included in all CCAGs.
It is recommended that public buyers implement such premiums, often more effective than late penalties.
17.7. Refinancing opportunities through transfers
debts 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 the Order of August 28, 2006 on the certificate of thesesibility of public procurement receivables (102).
The holder of the contract, if he decides to assign his or her receivable to a bank or other business, shall hand over this single copy or certificate of thesesibility to his or her assignee (or the beneficiary of the sale). The latter notifies the assignment to the assignee of the contracting public body and sends it the single copy or certificate of thesesibility.
Notification of a transfer to a bank from the Act No. 81-1 of 2 January 1981 Amended, known as the Dailly Law, whose provisions are included in the monetary and financial code, must be made by registered letter with acknowledgement of receipt or by any other means to give certain date.
On the other hand, the notification of a transfer of common law gives rise to meaning by act of bailiff.
The notification or service must be made to the assigning public accountant of payments, the only authorised to receive it. It is useful that the ordering services indicate to the assignee the need to establish its notification in the hands of the accountant, with a view to payment to the good beneficiary.
The single copy (certificate of thesesibility) device prevents the same receivable from being disposed of several times or a company from giving 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 to each single copy or certificate of thesesibility issued under the contract, when the respective share of the undertakings (holder, subcontractors) is changed during the contract. An order of the Minister responsible for the economy specifies the conditions under which this certificate of thesesibility may be dematerialized.
If the contract is executed by a group of companies, the issuance of the single copy or certificate of thesesibility is subject to different rules depending on the type of grouping.
In the case of a joint grouping, a single copy or a certificate of thesesibility must be issued to each of the companies concerned limited to the amount of the benefits entrusted to it.
In the case of a solidarity grouping, if the benefits made by the companies composing the grouping are not individualized, the single copy or certificate of thesesibility should be issued on behalf of the grouping. If, on the other hand, the benefits are individualized, a single copy or a certificate of thesesibility is issued to each company on the part of the benefits it performs.
In the case of a contract with a purchase order or a sliced market, it is issued, at the discretion of the holder, either a single copy or a certificate of market Cessibility, or a single copy or a certificate of Cessibility of each order or of each instalment.
17.8. The possibilities of modifying the initial contract
decisions to continue (103)
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 evaluative amount of a unit price contract involves the parties, in the same way as the amount of a flat price market: the decision to proceed is then essential even if, only, the quantities are affected and not the unit prices themselves.
17.8.1. The advent
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 another contract with the original contract, either because its economy would be upset, or because its object would not be the same.
In a decision of 19 June 2008, Pressetext Nachrichtenagentur GmbH(case C-454/06), the Court of Justice of the European Communities has specified that the modification of a valid public market may be considered to be substantial and therefore cannot be effected by:
― when it introduced conditions that, if they had frozen in the original procurement procedure, would have allowed the admission of bidders other than those initially admitted or would have allowed to retain an offer other than that initially selected (item 35 of the above-mentioned decision);
- when it extends the market to a significant extent to services not initially planned (item 36);
― when it changes the economic balance of the contract in favour of the contract, in a manner that was not provided for in the terms of the initial market (item 37).
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. An advent can then be concluded to deal with it, without a limit of amount. This exception is applicable to all contract categories: work, supplies and services.
Under previous reservations, the amendment resulting from an Avenor may relate to all the commitments of the parties to the contract: performance, performance 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 actor. 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 sale of the market must take place only with the prior consent of the public community (see the opinion of the Finance Section of the Council of State of 8 November 2000 on the assignments of public contracts or public service delegation, No. 364803). Therefore, 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 cannot refuse the assignment only for reasons derived from the insufficient capacity of the registrant. If the assignment appears to it in such a way as to challenge the essential elements relating to the choice of the original holder of the contract, or to substantially alter the contract economy, the public community is required to refuse its authorization to transfer.
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).
Any project to a market in a territorial community, a local public institution other than a public health institution and a social and medico-social public institution resulting in an increase in the overall market value of more than 5% must be submitted for advice to the tender board when the initial market had been submitted to the tender board. The deliberative assembly that decides if any is previously informed of this notice.
The advent must be distinguished from the complementary markets negotiated without prior advertising and competition (Article 35-II [4° and 5° ] of the code). These complementary markets are new markets, the cumulative amount of which, for complementary service and labour markets, must not exceed 50 per cent of the original market.
17.8.2. The decision to continue
The decision to continue is a unilateral act that is intended to allow 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 affect the object.
Unlike the advent, contractual act, the decision to prosecute is signed by the only public person.
The conditions under which the buyer can use the decision to pursue must be provided in the market. This is the case when it applies to the AGCC applicable to labour markets. It allows for the unforeseen work necessary for the completion of the work in a short period of time and, in some cases, even before there is agreement on prices. Indeed, the decision to continue may be taken on the basis of the preliminary prices notified to the contractor by the orders of service prescribing to perform the additional work.
18. How can a dispute be resolved amicably regarding the execution of public procurement? (104) Public buyers can use three devices
3.1. Conciliation
The parties may agree to use a conciliator third party. Conciliation is organized freely. It may be entrusted to an administrative judge (art. L. 211-4 of the Administrative Justice Code).
In order to conclude a conciliation or formalize a notice by a CCRA, a transaction may be concluded under the conditions recalled by the circular dated 7 September 2009 (105).
3.2. Amicable Dispute Settlement Committees
or disputes relating to public procurement (106)
These are conciliation advisory bodies, which may be seized of any different or dispute arising during the performance of a public market.
The national committee and the seven local committees (Paris, Versailles, Nantes, Bordeaux, Lyon, Nancy and Marseille) cannot be assimilated either to courts or to arbitration bodies. They seek, at the request of the market owner or the public purchaser, the factual and legal elements for a friendly and equitable solution (CMP, art. 127). The originality of the role of the committees is that they do not only rule in law. They may take fairness into account in proposing the most appropriate solution to the parties. The notices rendered by the committees do not apply to the parties: they remain free to follow or not.
The referral of a committee interrupts the course of the various requirements and suspends the deadlines for litigation.
The rules relating to the composition, organization and operating modalities of the Amicable Dispute Resolution Advisory Committees or disputes relating to public procurement are set by the Decree No. 2001-797 of 3 September 2001.
3.3. Arbitration
The State, territorial authorities and local public institutions may, for the liquidation of their labour and supplies expenses, resort to arbitration under the conditions laid down in Article 128 of the Public Procurement Code.
The arbitral award has a judicial character (107).
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.
19. What are the cases in which award-winning authorities can be referred to as procuring entities and what specific procurement rules are applicable to them?
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, 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. The same public person will therefore be qualified as a procuring authority or a procuring entity, depending on the nature of the activity under which it passes a public market.
19.1. What are the activities of network operators?
19.1.1. Activities subject to the electricity code,
gas or heat
(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.
The procuring power subject to the code must comply with the rules set out in Part Two, relating to procuring entities when:
―it exploits the network itself;
―it makes purchases to build, organize and make the network available to a third party to whom the network management will be assigned in accordance with the various authorized modes of devolution. This 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;
either it feeds the network.
19.1.2. Activities subject to the water code
(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) Markets 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 supply represents more than 20% of the total volume of water used for these projects.
19.1.3. Transport code activities
(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.
19.1.4. Postal activities
The Post 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 post).
19.1.5. Other activities
(a) Activities related to the operation of a geographic area, with the aim of prospecting or extracting oil, gas, coal or other solid fuels.
(b) Activities related to the operation of a geographic area to organize and make available to carriers, airports, seaports, river ports or other transport terminals (e.g., activities related to the operation of the air or marine space).
19.1.6. Common factors
The contract, by which the procuring entity entrusts to a third party the management and operation of the network, does not constitute a network operator activity (EC, July 9, 2007, Syndicat EGF-BTP, no. 297711). Indeed, by this act, the public person divested himself from the network and lost his capacity as a procuring entity to regain his capacity as a procuring authority. However, the availability of the network is a network operator's "activity" within the meaning of section 135.
What are the exceptions to the application of the public procurement code?
Articles 136 to 140 list the 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. This is to exclude from the scope of the code the contracts passed by a procuring entity with a business that is related to it when it is considered to be in-house benefits. This is a particular case of integrated benefits broader than quasi-regia benefits for procuring powers (arts. 138 and 139, cf. 3.1 of this guide).
(c) Cases where the application of the rules of the code is no longer justified insofar as the European Commission has established that the activity of operators was carried out in a fully competitive framework (art. 140).
19.3. What are the main differences in procedural rules
between procuring entities and procuring authorities?
The regime applicable to procuring powers, when acting as procuring entities, is characterized by greater flexibility.
19.3.1. Applicable thresholds
The specific threshold for procurement of supplies and services passed by procuring entities is set out in section 144 of the Public Procurement Code (108).
The threshold for labour markets is the same, but does not assess in the same way. In fact, it is necessary to take into account not only the overall value of the work related to the same operation and which may relate to one or more works, to which the value of the supplies is added, but also the services (with the exception of the master's services) necessary for their realization that the procuring entity makes available to the operators. The procuring authorities only have to take into account the value of supplies. The procuring entities have, in fact, often study offices that have taken place prior to the proceedings and are likely to provide their expertise to the market-holder.
19.3.2. The choice of procedures
Unlike the procuring authorities, procuring entities may freely use the negotiated procedure, 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.
The competitive dialogue procedure is not intended for procuring entities. This situation is justified by the fact that, in all cases, procuring entities may resort to the negotiated procedure with more ease of use. However, they can be inspired by the dialogue procedure to conduct their negotiations.
19.3.3. 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 the future holders of its markets. The procuring entity may even use a qualification system established by a third party. This is a system for pre-selection of potential candidates and not the selection phase for a given market (arts. 152 to 155). The procuring entity is not required to compete with all economic operators so pre-selected, but may, in accordance with the requirements of the code, initiate a procedure by consulting only some of them.
19.3.4. Variants
Conversely, the existing rule for contracts passed on a formalized procedure of procuring powers, the variants are accepted in principle, unless otherwise specified in the documents of the consultation. Entities therefore do not need to expressly authorize them (art. 157).
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).
19.3.6. 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).
19.3.7. Minimum number of candidates admitted
In restricted and competitive bidding, procuring entities are not required to set a minimum number of applicants admitted to tendering an offer to 5 or 3 (arts. 162 and 165).
19.3.8. Labour mastery markets
The procuring entities are not required to use the competition for the mastery 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.
19.3.9. 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).
19.3.10. Advertising procedure
The notice of pre-information shall be called the indicative periodic notice (art. 149) and shall be dual in function:
the same function as the notice of pre-information of the procuring powers;
― to hold a notice of public appeal to competition, where it contains the following additional references (art. 151):
― the reference of benefits, object of the market;
― the reference that the notice will not be followed by any notice of public appeal to competition;
– an invitation to be made known to interested economic operators.
The procuring entity must then send to these economic operators a letter supplementing the notice and inviting them to submit an offer. However, this letter must have been sent within twelve months of the publication of the notice, without which it becomes null and void.
In addition, procuring entities have three types of forms related to the notice of public competition appeal. Unlike the procuring authorities, they may use the indicative periodic notice model or that of the notice 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).
Conclusion: mastering public procurement
The increasing responsibilities given to public buyers, in particular by the reforms undertaken in 2008, must lead them to pay particular attention to the organization of their procurement services and to the training of those responsible.
The strict observance of legal rules is essential. He is, if any, severely punished by the judge, a judge of the pre-contractual referee, a judge of the contractual referee, an account judge, or, if any, by the criminal judge.
However, compliance with procedural rules is not enough to ensure the quality of a purchase and the best management of public money. Public procurement requires special training, especially for the optimization of the negotiation technique.
In order to guide buyers in the exercise of their responsibilities and to be able, at any time of the proceedings, to justify the choices made, it is also recommended to the procuring authorities and procuring entities to adopt an ethics guide, which should govern both the behaviour of their procurement services and that of final decision makers. This guide may usefully contain rules relating to the prohibition of gifts and invitations, the declaration of possible links of any kind of public officials with a particular supplier, the obligation of purchasing services officials to take leave of sufficient duration, the access, security and archiving of documents of any kind that trace exchanges with suppliers, etc. (109).
The attention of buyers is drawn to the fact that many of the documents relating to contracting are communicable administrative documents (110).
Done in Paris, December 29, 2009.
Minister of Economy,
industry and employment,
Christine Lagarde
The Minister of the Interior,
the overseas and territorial authorities,
Brice Hortefeux
Minister of Budget, Public Accounts,
Civil Service
and state reform,
Eric Woerth
