Key Benefits:
Publics concerned: public and professional buyers (candidate companies for public order contracts or holders of a public works concession contract).
Subject: modalities for advertising and competition of public works concession contracts of the State, territorial authorities and procuring authorities subject to theOrder No. 2005-649 of 6 June 2005 Amended procurement contracted by certain public or private individuals not subject to the public procurement code as well as contracting by concessionaire. The decree also contains various provisions amending certain texts of the public order.
Entry into force: except for articles relating to the repeal of the Decree No. 92-311 of 31 March 1992 submitting the transfer of certain contracts of supplies, works or services to advertising and competition rules and provisions relating to definition contracts, the Order applies to draft contracts for which a consultation is undertaken from the date of its entry into force. Contracts for which a consultation was initiated before that same date remain subject to the provisions of the aforementioned Decree of 31 March 1992.
Notice: this decree in the Council of State provides for measures to implement theOrder No. 2009-864 of 15 July 2009 relating to contracts for concession of public works concerning contracts passed by territorial authorities and procuring authorities subject to theOrder No. 2005-649 of 6 June 2005 referred to above and the concessionaire's contracts. It also provides for the provisions applicable to contracts passed by the State, currently governed by the Decree No. 92-311 of 31 March 1992 submitting the transfer of certain contracts of supplies, works or services to advertising and competition rules. Finally, it amends various provisions of certain texts of the public order, such as the public procurement code or the decrees to apply the order of June 6, 2005 referred to above.
References: this decree and the texts it amends may be consulted, in their drafting, on the site of Légifrance
(http://www.legifrance.gouv.fr).
The Prime Minister,
On the report of the Minister of Economy, Industry and Employment,
Having regard to Article 37 of the Constitution;
Considering the Treaty on the Functioning of the European Union;
Having regard to Council Directive 89/665/EEC of 21 December 1989, as amended, coordinating the legislative, regulatory and administrative provisions relating to the application of appeal procedures for procurement of public procurement of supplies and works;
Having regard to Council Directive 92/13/EEC of 25 February 1992 amended to coordinate legislative, regulatory and administrative provisions relating to the application of community rules on procurement procedures for entities operating in the water, energy, transport and telecommunications sectors;
Considering Directive 2004/17/EC of the European Parliament and of the Council of 31 March 2004 on the coordination of procurement procedures in the water, energy, transport and postal services sectors;
Having regard to Directive 2004/18/EC of the European Parliament and the Council of 31 March 2004 on the coordination of procedures for the procurement of public works, supplies and services;
Considering Commission Regulation (EC) No 1564/2005 of 7 September 2005, as amended by Regulation (EC) No 1150/2009 of 10 November 2009, establishing the standard forms for the publication of public procurement notices;
Vu le Civil codearticles 1316 to 1316-4;
Vu le Criminal codein particular the 5th of its article 131-39;
Vu le Trade codeincluding article R. 821-14-19;
Vu le general code of territorial authoritiesin particular the title I of Book IV of its first part;
Vu le Administrative Justice Code ;
Vu le monetary and financial codeincluding its article R. 621-26;
Vu le Social Security Codeincluding its article R. 161-101;
Considering the sports code, including its article R. 232-41;
Considering the public procurement code;
See?Order No. 2005-649 of 6 June 2005 amended on contracts passed by certain public or private persons not subject to the public procurement code;
See?Order No. 2009-864 of 15 July 2009 relating to public works concession contracts;
Vu le Decree No. 2002-677 of 29 April 2002 amended with respect to the obligation to decorate public buildings and specifying the conditions for contracting to meet this obligation;
Vu le Decree No. 2004-16 of 7 January 2004 amended pursuant to Article 4 of the Public Procurement Code and in respect of certain public procurements for defence purposes;
Vu le Decree No. 2005-1308 of 20 October 2005 amended on contracts passed by the procuring entities referred to in theArticle 4 of Order No. 2005-649 of 6 June 2005 relating to procurement by certain public or private persons not subject to the public procurement code;
Vu le Decree No. 2005-1742 of 30 December 2005 Amending the rules applicable to contracts passed by the procuring authorities referred to in theArticle 3 of Order No. 2005-649 of 6 June 2005 relating to procurement by certain public or private persons not subject to the public procurement code;
Considering the opinion of the Standards Advisory Board dated 5 November 2009;
The State Council (Section of Administration) heard,
Decrete:
Public works concession contracts are administrative contracts whose purpose is to carry out all construction or civil engineering work by a concessionaire, whose remuneration consists either in the right to operate the work or in this right with a price.
The procuring powers under this heading are the State and its public institutions, other than those of an industrial and commercial nature.
When a concession contract deals both with services and work, it is subject to this title if its main purpose is to carry out work.
The provisions of this title do not apply:
1° To contracts between a procuring authority and a contracting partner on which it exercises control comparable to that exercised on its own services and which carries out the bulk of its activities for it, provided that the contracting partner, is deteriorating the quality of the procuring power, is applying, in order to meet its own needs, the rules of contracting provided for by this decree, by the public procurement code, 2005 or the orderOrder dated July 15, 2009 ;
2° To contracts entered into by a procuring authority with another procuring authority, on the basis of a legal provision taken, of an exclusive right;
3° Contracts requiring secrecy or whose execution is legally subject to specific security measures;
4° To contracts for which the protection of the essential interests of the State requires it;
5° Contracts under the procedure specific to an international organization;
6° Contracts entered into under special procurement rules under an international agreement on the parking of troops;
7° Contracts entered into under specific procurement rules under an international agreement for the realization or joint operation of a project or work;
8° To contracts entered into by a procuring authority in the exercise of a network operator activity defined in sections 26 to 30 of the order of June 6, 2005 referred to above;
9° Contracts with the primary purpose of allowing the provision or operation of public electronic communications networks or the provision to the public of one or more electronic communications services.
In order to ensure the effectiveness of public order and the proper use of public money, the public works concession contracts mentioned in Chapter 1 respect the principles of freedom of access to public order, equal treatment of candidates and transparency of procedures.
I. ― The nature and extent of the needs to be met by public works concession contracts are determined taking into account sustainable development objectives.
II. ― The conditions for a concession of public works may include obligations to reconcile economic development, environmental protection and development and social progress, in accordance with the objectives of sustainable development.
These obligations are set out in the Notice of Public Appeal to Competition or in the consultation documents. They cannot discriminate against potential candidates.
The procuring power may:
1° Either require candidates to subcontract to third parties a percentage, at least 30%, of the overall value of the work under the contract;
2° Either invite candidates to indicate in their offers whether they intend to entrust to third parties a share of the work under the contract and, if so, the percentage it represents in the overall value of the work.
The requirement referred to in 1° or the invitation referred to in 2° shall be indicated in the notice of public appeal to competition or in the documents of the consultation.
I. ― A grouping of orders may be made between several procuring authorities for the procurement of a public works concession contract.
A constitutive agreement, signed by the members of the group, defines its modalities of operation.
The agreement shall include among the members of the group a co-ordinator to carry out, in accordance with the rules set out in this title, the organization of all the concessionaire's selection operations.
Each member of the group undertakes, in the agreement, to sign a contract with the selected dealer to meet their own needs, as previously determined.
II. ― Each member of the group, as far as it is concerned, signs the contract and ensures its proper execution.
The constitutive convention of the group may also provide that the coordinator shall be responsible:
1° Either to sign and notify the contract, each member of the group, as far as it is concerned, assuring its proper execution;
2° Either sign the contract, notify it and execute it on behalf of all members of the group.
The bid bans to be issuedsection 8 of the order of June 6, 2005 referred to above applies to public works concession contracts.
Persons sentenced under the 5° of Article 131-39 of the Criminal Code cannot bid on public works concession contracts.
I. ― The procuring authority that proposes to enter into a public works concession contract of an amount equal to or greater than 4,845,000 € HT makes its intention known by means of a notice in accordance with the model established by the community rules for this purpose.
II. ― For the determination of the amount referred to in I, is taken into account all foreseeable products of the performance of the concession, including, where applicable, the value of the facilities and supplies that the procuring authority proposes to make available to the concessionaire.
The procuring authority shall not be exempt from the application of the rules of advertising and competition by scintillating its purchases or by using methods for calculating the estimated value of contracts other than those provided for in the preceding paragraph. When the proposed operation can be carried out by separate batches, the estimated overall value of all of these lots is taken into account.
The notice of public appeal to competition for the award of a public works concession contract governed by Article 10 I is sent for publication in the Official Journal of the European Union. The procuring authority must be in a position to demonstrate the date of this notice.
The publication of a supplementary notice of public appeal to competition in another publication may not take place before the notice referred to in the preceding paragraph is sent. Such a supplementary notice may not provide any more information than those contained in the sending to the Office of Official Publications of the European Union, which it specifies the date. The same requirements apply to the opinion that the procuring authority may publish on its buyer's profile.
The procuring authority freely chooses the terms of advertising adapted to public works concession contracts in an amount below the threshold set out in I of Article 10, depending on the characteristics of the contract and in particular its amount and the nature of the work involved.
The public call to competition is not required for the contract to be contracted for further work that has become, due to an unforeseen circumstance, necessary for the completion of the transaction described in the original contract, provided that the award is made to the economic operator who has carried out this operation and that:
1° Either this complementary work cannot, without major disadvantage to the procuring power, be technically or economically separated from the main contract;
2° Either this work, although separable from the execution of the initial contract, is strictly necessary for its perfect completion.
The cumulative amount of these complementary contracts shall not exceed 50 per cent of the share of the main contract for work.
The procuring authority that proposes to enter into a public works concession contract in an amount equal to or greater than the threshold referred to in I of Article 10 shall meet the following deadlines:
1° The deadline for receipt of applications for the concession may not be less than fifty-two days from the date of receipt of the notice to the Office of Official Publications of the European Union, reduced to forty-five days if the notice is sent electronically;
2° Additional information is sent no later than six days before the deadline for the receipt of offers to economic operators who request them in due course;
3° The deadline for receipt of tenders is freely set by the procuring authority, which extends it when tenders can only be filed following a visit to the place of execution of the contract or after consultation on site of additional documents, as well as in the case where the deadline mentioned in the 2° above cannot be met. This extended deadline is communicated to candidates.
I. ― Written documents supporting the procurement of public works concession contracts may be replaced by the production of electronic physical support or by electronic exchange.
The procuring authority may indicate in the notice of public tender to competition the mode of transmission it retains.
The candidates apply the same mode of transmission to all the documents they address to the procuring power.
Devices used to communicate by electronic means and their technical characteristics should not be discriminatory. They must be accessible with information and communication technologies generally used. The network access fees are charged to each candidate.
II. ― Information on how to submit applications and offers electronically, including encryption where applicable, is available to interested parties.
Candidates and offers transmitted electronically or electronically are submitted under conditions that allow the candidate to be authenticated, as required by sections 1316 to 1316-4 of the Civil Code.
The transmission of applications and offers will result in an acknowledgement of receipt indicating the date and time of receipt.
All necessary technical security measures are taken by the procuring authority so that no one can have access to the data transmitted by the candidates before the deadlines for receipt of applications and offers, and that any violation of this prohibition is easily detectable.
Candidates who transmit their documents electronically may send to the procuring authority, on paper or on electronic physical support, a backup copy of the documents prepared in accordance with the terms and conditions established by the Minister for the Economy. Such a copy may only be taken into consideration if it has reached the procuring authority within the prescribed time limit for the filing, as the case may be, of applications or offers.
In the event of a grouping of orders, the coordinator designated by the group shall assume the obligations under this article to the procuring authority.
In the case of grouped applications, the agent ensures the safety and authenticity of the information transmitted on behalf of the members of the group.
Candidate for a public works concession contract attached to his candidacy the comprehensive list of companies related to him or her III of section 12 of the above-mentioned order of 15 July 2009.
The successful candidate must inform the procuring authority of changes affecting this list during the performance of the contract.
I. ― The procuring authority, as soon as it has made its choice for an application or an offer for the conclusion of a public works concession contract of an amount equal to or greater than the threshold mentioned in I of Article 10, shall notify all other candidates of the rejection of their application or offer with the reasons for such rejection.
This notification specifies the name of the attribute, as well as the reasons that led to the choice of its offer, the candidates who have submitted an offer and those who have not yet received the rejection of their application.
A period of not less than sixteen days shall be met between the date of the notification referred to in the preceding paragraphs and the date of conclusion of the contract. This deadline is reduced to at least eleven days in the event of electronic transmission of notification to all interested candidates.
The notification of the award of the contract includes the indication of the duration of the suspension period that the awarding authority imposes.
II. - Compliance with the time limits referred to in I is not required when the contract is awarded to the only candidate who has submitted an offer that meets the requirements set out in the notice of public competitive appeal or in the documents of the consultation.
III. - To make applicable provisions of the first paragraph of Article L. 551-15 of the Administrative Justice Code to public works concession contracts exempted from advertising obligations, the procuring authority, having issued to the Official Journal of the European Union a notice relating to its intention to conclude the contract in accordance with the model established by the Community Regulation for that purpose, shall respect a period of not less than eleven days between the date of publication of this notice and the date of conclusion of the contract.
To make applicable provisions of the first paragraph of Article R. 551-7 of the Administrative Justice Code, the procuring authority publishes in the Official Journal of the European Union a notice of attribution in accordance with the model set by the Community Regulation for that purpose.
I. ― The procuring authority that proposes to enter into a public works concession contract of an amount equal to or greater than 4,845,000 € HT makes its intention known by means of a notice in accordance with the model established by the Community regulations for this purpose
II. ― For the determination of the amount referred to in I, is taken into account all foreseeable products of the performance of the concession, including, where applicable, the value of the facilities and supplies that the procuring authority proposes to make available to the concessionaire.
The procuring authority shall not be exempt from the application of the rules of advertising and competition by scintillating its purchases or by using methods for calculating the estimated value of contracts other than those provided for in the preceding paragraph. When the proposed operation can be carried out by separate batches, the estimated overall value of all of these lots is taken into account.
The notice of public appeal to competition for the award of a public works concession contract governed by Article 19 I is sent for publication in the Official Journal of the European Union. The procuring authority must be in a position to demonstrate the date of this notice.
The publication of a supplementary notice of public appeal to competition in another publication may not take place before the notice referred to in the preceding paragraph is sent. Such a supplementary notice may not provide any more information than those contained in the sending to the Office of Official Publications of the European Union, which it specifies the date. The same requirements apply to the opinion that the procuring authority may publish on its buyer's profile.
The public call to competition is not required for the contract to be contracted for further work that has become, due to an unforeseen circumstance, necessary for the completion of the transaction described in the original contract, provided that the award is made to the economic operator who has carried out this operation and that:
1° Either this complementary work cannot, without major disadvantage to the procuring power, be technically or economically separated from the main contract;
2° Either this work, although separable from the execution of the initial contract, is strictly necessary for its perfect completion.
The cumulative amount of these complementary contracts shall not exceed 50 per cent of the share of the main contract for work.
The procuring authority that proposes to enter into a public works concession contract in an amount equal to or greater than the threshold referred to in Article 19 I shall meet the following deadlines:
1° The deadline for receipt of applications for the concession may not be less than fifty-two days from the date of receipt of the notice to the Office of Official Publications of the European Union, reduced to forty-five days if the notice is sent electronically;
2° Additional information is sent no later than six days before the deadline for the receipt of offers to economic operators who request them in due course;
3° The deadline for receipt of tenders is freely set by the procuring authority, which extends it when tenders can only be filed following a visit to the place of execution of the contract or after consultation on site of additional documents, as well as in the case where the deadline mentioned in the 2° above cannot be met. This extended deadline is communicated to candidates.
I. ― Written documents supporting the procurement of public works concession contracts may be replaced by the production of electronic physical support or by electronic exchange.
The procuring authority may indicate in the notice of public tender to competition the mode of transmission it retains.
The candidates apply the same mode of transmission to all the documents they address to the procuring power.
Devices used to communicate by electronic means and their technical characteristics should not be discriminatory. They must be accessible with information and communication technologies generally used. The network access fees are charged to each candidate.
II. ― Information on how to submit applications and offers electronically, including encryption where applicable, is available to interested parties.
Candidates and offers transmitted electronically or electronically are submitted under conditions that allow the candidate to be authenticated, as required by sections 1316 to 1316-4 of the Civil Code.
The transmission of applications and offers will result in an acknowledgement of receipt indicating the date and time of receipt.
All necessary technical security measures are taken by the procuring authority so that no one can have access to the data transmitted by the candidates before the deadlines for receipt of applications and offers, and that any violation of this prohibition is easily detectable.
Candidates who transmit their documents electronically may send to the procuring authority, on paper or on electronic physical support, a backup copy of the documents prepared in accordance with the terms and conditions established by the Minister for the Economy. Such a copy may only be taken into consideration if it has reached the procuring authority within the prescribed time limit for the filing, as the case may be, of applications or offers.
In the case of grouped applications, the agent ensures the safety and authenticity of the information transmitted on behalf of the members of the group.
Candidate for a public works concession contract attached to his candidacy the comprehensive list of companies related to him or her III of section 12 of the above-mentioned order of 15 July 2009.
The successful candidate must inform the procuring authority of changes affecting this list during the performance of the contract.
I. ― The procuring authority, as soon as it has made its choice for an application or an offer for the conclusion of a public works concession contract equal to or greater than the threshold mentioned in I of Article 19, shall notify all other candidates of the rejection of their application or offer with the reasons for such rejection.
This notification specifies the name of the attribute, as well as the reasons that led to the choice of its offer, the candidates who have submitted an offer and those who have not yet received the rejection of their application.
A period of not less than sixteen days shall be met between the date of the notification referred to in the preceding paragraphs and the date of conclusion of the contract. This deadline is reduced to at least eleven days in the event of electronic transmission of notification to all interested candidates.
The notification of the award of the contract includes the indication of the duration of the suspension period that the awarding authority imposes.
II. ― Compliance with the time limits referred to in I is not required when the contract is awarded to the only candidate who has submitted an offer that meets the requirements set out in the notice of public competitive appeal or in the documents of the consultation.
III. ― To make applicable provisions of the first paragraph of Article L. 551-15 of the Administrative Justice Code to public works concession contracts exempted from advertising obligations, the procuring authority, having issued to the Official Journal of the European Union a notice relating to its intention to conclude the contract in accordance with the model established by the Community Regulation for that purpose, shall respect a period of not less than eleven days between the date of publication of this notice and the date of conclusion of the contract.
To make applicable provisions of the first paragraph of Article R. 551-7 of the Administrative Justice Code, the procuring authority publishes in the Official Journal of the European Union a notice of attribution in accordance with the model set by the Community Regulation for that purpose.
After Chapter IV of Title I of Book IV of Part I of the General Code of Territorial Communities, a chapter V is inserted as follows:
“Chapter V
“Public works concession contracts
"Art. R. 1415-1. - I. The provisions of this chapter governing territorial authorities are applicable to local public institutions.
“II. ― The territorial community proposing to enter into a public works concession contract of an amount equal to or greater than €4,845,000 HT shall make its intention known by means of a notice in accordance with the model set out in the Community regulations for that purpose.
"III. ― For the determination of the amount referred to in the II, all foreseeable products of the concession, including, where applicable, the value of the facilities and supplies that the territorial community proposes to make available to the concessionaire.
"The territorial community cannot avoid the application of the rules of advertising and competition by scintillating its purchases or using methods for calculating the value of contracts other than those provided for in the preceding paragraph. When the proposed operation can be carried out by separate batches, the estimated overall value of all of these lots is taken into account.
"Art. R. 1415-2. - I. A group of orders may be established between a territorial and other procuring authorities for the procurement of a public works concession contract.
"A constituent agreement, signed by the members of the group, defines its modalities of operation.
"The agreement shall designate among the members of the group a coordinator to carry out, in accordance with the rules set out in this chapter, the organization of all the concessionaire's selection operations.
"Every member of the group undertakes, in the agreement, to sign a contract with the selected dealer to meet their own needs, as it has previously determined them.
“II. ― Each member of the group, as far as it is concerned, signs the contract and ensures its proper execution.
"The constitutive convention of the group may also provide that the coordinator shall be responsible:
« 1° Either to sign and notify the contract, each member of the group, as far as it is concerned, assuring its proper execution;
« 2° Either sign the contract, notify it and execute it on behalf of all members of the group.
"Art. R. 1415-3. - The notice of public appeal to competition for the award of a public works concession contract governed by Article II R. 1415-1 is sent for publication in the Official Journal of the European Union. The territorial community must be able to demonstrate the date of this notice.
"The publication of a supplementary notice of public appeal to competition in another publication may not take place before the notice referred to in the preceding paragraph is sent. Such a supplementary notice may not provide any more information than those contained in the sending to the Office of Official Publications of the European Union, which it specifies the date. The same requirements apply to the opinion that the territorial authority may publish on its buyer profile.
"Art. R. 1415-4. - The territorial community freely chooses the terms of advertising adapted to public works concession contracts in the amount below the threshold set out in II of Article R. 1415-1, depending on the characteristics of the contract, including its amount and the nature of the work involved.
"Art. R. 1415-5. - The public call to competition is not required for the contract to be contracted for further work that has become, due to an unforeseen circumstance, necessary for the completion of the transaction described in the original contract, provided that the award is made to the economic operator who has carried out this operation and that:
« 1° Either this complementary work cannot, without major disadvantage to the territorial community, be technically or economically separated from the main contract;
« 2° Either this work, although separable from the execution of the initial contract, is strictly necessary for its perfect completion.
"The cumulative amount of these complementary contracts shall not exceed 50 per cent of the share of the main contract for work.
"Art. R. 1415-6. - The territorial community proposing to enter into a public works concession contract in an amount equal to or greater than the threshold referred to in II of Article R. 1415-1 shall meet the following deadlines:
« 1° The deadline for receipt of applications for the concession may not be less than fifty-two days from the date of receipt of the notice to the Office of Official Publications of the European Union, reduced to forty-five days if the notice is sent electronically;
« 2° Additional information is sent no later than six days before the deadline for the receipt of offers to economic operators who request them in due course;
« 3° The deadline for receipt of tenders is freely set by the territorial authority, which extends it when tenders can only be filed following a visit to the place of execution of the contract or after consultation on site of additional documents, as well as in the case where the deadline mentioned in the 2° above cannot be met. This extended deadline is communicated to candidates.
"Art. R. 1415-7. - I. Written documents supporting the procurement of public works concession contracts may be replaced by the production of electronic physical support or by electronic exchange.
"The territorial community may indicate in the notice of public appeal to competition the mode of transmission it retains.
"Candidates apply the same mode of transmission to all documents they address to the local community.
"The devices used to communicate by electronic means and their technical characteristics must not be discriminatory. They must be accessible with information and communication technologies generally used. The network access fees are charged to each candidate.
“II. ― Information on how to submit applications and offers electronically, including encryption where applicable, is available to interested parties.
"Applications and offers transmitted electronically or electronically are submitted under conditions that allow the candidate to be authenticated, as required by sections 1316 to 1316-4 of the Civil Code.
"The transmission of applications and offers results in an acknowledgement of receipt indicating the date and time of receipt.
"All necessary technical security measures are taken by the territorial community so that no one can access the data transmitted by the candidates prior to the deadlines for receipt of applications and offers, and that any violation of this prohibition is easily detectable.
"Candidates who transmit their documents electronically may send to the local community, on paper or on electronic physical media, a backup copy of the documents prepared in accordance with the terms and conditions set by order of the Minister responsible for the economy. Such a copy may only be taken into consideration if it has reached the local authority within the time limit prescribed for the filing, as the case may be, of applications or offers.
"In the event of a grouping of orders, the coordinator designated by the group shall assume the obligations under this article to the procuring authority.
"In the case of grouped applications, the agent ensures the safety and authenticity of the information transmitted on behalf of the members of the group.
"Art. R. 1415-8. - Candidate for a public works concession contract attached to his candidacy the comprehensive list of companies related to him or her III of Article 12 of Order No. 2009-864 of 15 July 2009 relating to public works concession contracts.
"The successful candidate must inform the territorial community of variations affecting this list during the performance of the contract.
"Art. R. 1415-9. - I. The territorial community, as soon as it has made its choice for an application or an offer for the conclusion of a public works concession contract in an amount equal to or greater than the threshold mentioned in II of Article R. 1415-1, shall notify all other candidates of the rejection of their application or offer with the reasons for such rejection.
"This notification specifies the name of the attribute, as well as the reasons that led to the choice of its offer, the candidates who have submitted an offer and those who have not yet received the rejection of their application.
"A period of not less than sixteen days shall be met between the date of the notification referred to in the preceding paragraphs and the date of conclusion of the contract. This deadline is reduced to at least eleven days in the event of electronic transmission of notification to all interested candidates.
"The notification of the award of the contract includes the indication of the duration of the suspension period required by the territorial community.
“II. ― Compliance with the time limits referred to in I is not required when the contract is awarded to the only candidate who has submitted an offer that meets the requirements set out in the notice of public competitive appeal or in the documents of the consultation.
"III. ― To make applicable provisions of the first paragraph of Article L. 551-15 of the Administrative Justice Code to public works concession contracts exempted from public advertising obligations, the territorial community, having issued a notice in the Official Journal of the European Union concerning its intention to conclude the contract in accordance with the model set by the Community regulations for that purpose, shall respect a period of not less than eleven days between the date of publication of this notice and the date of conclusion of the contract.
"Art. R. 1415-10. - To make applicable provisions of the first paragraph of Article R. 551-7 of the Administrative Justice Code, the territorial community publishes a notice of attribution to the Official Journal of the European Union in accordance with the model set out in the Community Regulation for this purpose. »
The provisions of this chapter shall apply to contracts of work passed by public works concessionaires referred to in 3° of Article 12 of the above-mentioned Order of July 15, 2009.
I. ― The Public Works Dealer who proposes to enter into a contract of work in an amount equal to or greater than €4,845,000 HT makes its intention known by means of a notice in accordance with the model established by the Community Regulation for this purpose.
II. ― For the determination of the amount referred to in I, the overall value of the work related to an operation on one or more works shall be taken into account, and, where appropriate, the value of the supplies required for their realization that the concessionaire makes available to the operator.
The concessionaire shall not be exempt from the application of the rules of advertising and competition by scintillating its purchases or using methods for calculating the estimated value of contracts other than those provided for in the preceding paragraph. When the proposed operation can be carried out by separate batches, the estimated overall value of all of these lots is taken into account.
The notice of public appeal to competition for the procurement of a labour market governed by Article 29 I is sent for publication in the Official Journal of the European Union. The dealer must be in a position to demonstrate the date on which this notice is sent.
The publication of a supplementary notice of public appeal to competition in another publication may not take place before the notice referred to in the preceding paragraph is sent. Such a supplementary notice may not provide any more information than those contained in the sending to the Office of Official Publications of the European Union, which it specifies the date.
I. ― The public call to competition is not required for the transfer by the concessionaire of a contract for additional work that has become, due to an unforeseen circumstance, necessary for the completion of the transaction described in the initial contract, provided that the award is made to the economic operator who has carried out this operation and that:
1° Either this complementary work cannot, without major disadvantage to the concessionaire, be technically or economically separated from the main contract;
2° Either this work, although separable from the execution of the initial contract, is strictly necessary for its perfect completion.
The cumulative amount of these complementary contracts shall not exceed 50 per cent of the main contract.
II. ― may also be entered into by the concessionaire without a public competitive appeal:
1° Contracts intended to deal with a compelling emergency resulting from unpredictable circumstances for the concessionaire and not as such, and whose procurement conditions are not consistent with the deadlines required under section 32, contracts that must be limited to the benefits necessary to cope with the emergency situation;
2° As long as the initial conditions of the market are not substantially altered and a report is communicated to the European Commission at its request to the European Commission, the markets that, after a competitive appeal, have not been the subject of any application or offer, or for which only inappropriate bids have been filed, within the meaning of Article 35 II of the Public Procurement Code;
3° For a maximum period of three years from the conclusion of the initial contract, the contract of work for the purpose of carrying out benefits similar to those entrusted to the holder of a previous contract after competition, provided that the initial contract indicated the possibility of using this procedure for the realization of similar benefits and that its competition took into account the total amount envisaged, including that of the new work;
4° Markets that can only be entrusted to a specified economic operator for technical, artistic or exclusive rights protection reasons.
The concessionaire who proposes to enter into a contract of work in an amount equal to or greater than the threshold referred to in Article 29 I shall meet the following deadlines:
1° The deadline for receipt of applications may not be less than thirty-seven days from the date of receipt of the notice to the Office of Official Publications of the European Union, reduced to thirty days if the notice is sent electronically;
2° Additional information is sent no later than six days before the deadline for the receipt of offers to economic operators who request them in due course;
3° The deadline for receipt of bids is at least forty days from the date of delivery of the notice provided at 1° or the invitation to submit an offer, reduced to thirty-three days if this notice has been sent electronically and may be reduced by five additional days if the concessionaire has indicated in the opinion that it gives free online access to the full terms of reference; This period is extended by the concessionaire when the offers can only be filed following a visit to the place of execution of the contract or after consultation on the place of additional documents, as well as in the case where the deadline mentioned in the 2° above cannot be met. This extended deadline is communicated to candidates.
The Public Procurement Code is amended as follows:
1° In sections 40-1 and 85-1, the words: "a market or framework agreement exempted from advertising obligations by the effect of the provisions of this Code or passed under section 28" are replaced by the words: "a market or framework agreement exempted from advertising obligations by the effect of the provisions of this Code or passed under sections 28 or 30";
2° In sections 151-1 and 172-1, the words: "a market or framework agreement exempted from advertising obligations by the effect of the provisions of this code or passed under section 148" are replaced by the words: "a market or framework agreement exempted from advertising obligations by the effect of the provisions of this code or passed under sections 146 or 148";
3° Section 170 is replaced by the following:
"Art. 170. - The provisions of Article 79 shall apply subject to the deletion of its 7°. »
The above-mentioned decree of 20 October 2005 is amended as follows:
1° In Articles 16-1 and 45-1, the words: "a market or framework agreement exempted from advertising obligations by the effect of the provisions of this decree or passed under Article 10" are replaced by the words: "a market or framework agreement exempted from advertising obligations by the effect of the provisions of this decree or passed under Articles 9 or 10";
2° The first paragraph of Article 28 I is supplemented by the following provisions: "It may, under the same conditions, request candidates who have not justified the legal capacity to file their applications to regularize their applications on this point. »
The above-mentioned decree of 30 December 2005 is amended as follows:
1° In Articles 16-1 and 47-2, the words: "a market or framework agreement exempted from advertising obligations by the effect of the provisions of this decree or passed under Article 10" are replaced by the words: "a market or framework agreement exempted from advertising obligations by the effect of the provisions of this decree or passed under Articles 9 or 10";
2° The first paragraph of Article 23 I is supplemented by the following provisions: "It may, under the same conditions, request candidates who have not justified the legal capacity to file their applications to regularize their applications on this point. »
Article 12 of the above-mentioned Decree of 29 April 2002 is amended as follows:
1° In the third paragraph, the words: "When the total amount of the order is greater than or equal to €26,000 HT" are replaced by the words: "When the total amount of the order is equal to or greater than the threshold mentioned in 2° of Article 30 of the Public Procurement Code";
2° In the fourth paragraph, the words: "In the case of an order of less than €26,000 HT" are replaced by the words: "In the case of an order of less than the threshold mentioned in the preceding paragraph".
Section 2 of the above-mentioned Decree of 7 January 2004 is replaced by the following provisions:
“(g) Contracts awarded to the author of the chosen solution as a result of several identical contracts concluded simultaneously and intended, on the one hand, to explore the possibilities and conditions for the establishment of a subsequent market, if any by means of the realization of a model or demonstrator, on the other hand, to estimate the level of the price of the benefits, to determine the modalities of its determination and to define the phases of its determination the use of this procedure is possible when the procuring authority is unable to specify the goals and performance to be achieved, the techniques to be used, the means of personnel and equipment to be implemented for a specific purpose; "
I. ― Section R. 821-14-19 of the Commercial Code is replaced by the following provisions:
"Art.R. 821-14-19.-The High Council is subject to the provisions ofOrder No. 2005-649 of 6 June 2005 relating to procurement by certain public or private individuals not subject to the public procurement code. »
II. ― Article R. 621-26 of the monetary and financial code is replaced by the following:
"Art.R. 621-26.-The Autorité des marchés financiers is subject to the provisions of theOrder No. 2005-649 of 6 June 2005 relating to procurement by certain public or private individuals not subject to the public procurement code. »
III. ― Section R. 161-101 of the Social Security Code is replaced by the following:
"Art.R. 161-101.-The High Authority is subject to the provisions of theOrder No. 2005-649 of 6 June 2005 relating to procurement by certain public or private individuals not subject to the public procurement code. »
IV. ― Section R. 232-41 of the Sports Code is replaced by the following:
"Art.R. 232-41.-The agency is subject to the provisions of theOrder No. 2005-649 of 6 June 2005 relating to procurement by certain public or private individuals not subject to the public procurement code. »
The thresholds set out in Articles 10, 19, 29 of this Order and in Article R. 1415-1 of the General Code of Territorial Communities may be amended by Order in Council.
I. ― Section 73, IV of section 74 and IV of section 168 of the Public Procurement Code are repealed.
II. ― Decree No. 92-311 of 31 March 1992 submitting the transfer of certain contracts of supplies, works or services to advertising and competition rules is repealed.
With the exception of sections 37, 39 and 40, the provisions of this Order apply to draft contracts for which a consultation is undertaken from the date of entry into force.
Contracts for which a consultation was initiated prior to the same date remain subject to the provisions of the Decree of 31 March 1992 mentioned above.
The Minister of Economy, Industry and Employment and the Minister of the Interior, Overseas and Territorial Authorities are responsible, each with respect to it, for the execution of this Order, which will be published in the Official Journal of the French Republic.
Done in Paris, April 26, 2010.
François Fillon
By the Prime Minister:
Minister of Economy,
industry and employment,
Christine Lagarde
The Minister of the Interior,
the overseas and territorial authorities,
Brice Hortefeux
