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Decree No. 2011 - 1000 25 August 2011 Amending Certain Provisions Applicable To Contracts Covered By The Public Procurement And Contracts

Original Language Title: Décret n° 2011-1000 du 25 août 2011 modifiant certaines dispositions applicables aux marchés et contrats relevant de la commande publique

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ADVERTISING , PUBLIC MARKING , PUBLIC CODE , PUBLIC BUY , MARKING , CONTRAT , PUBLIC PERSONAL , PERSONAL , PUBLIC COMMITMENT , LAW SIMPLEMENT , TRANSPARTURE , MARKING , MARKING


JORF n°0197 of 26 August 2011 page 14453
text No. 17



Decree No. 2011-1000 of 25 August 2011 amending certain provisions applicable to contracts and contracts under public order

NOR: EFIM1104658D ELI: https://www.legifrance.gouv.fr/eli/decret/2011/8/25/EFIM1104658D/jo/texte
Alias: https://www.legifrance.gouv.fr/eli/decret/2011/8/25/2011-1000/jo/texte


Publics concerned: public and professional buyers (contracting companies and public order contracts).
Subject: the decree amends the Public procurement code and Decrees No. 2005-1308 of 20 October 2005 and No. 2005-1417 of 30 December 2005Order No. 2005-649 of 6 June 2005 in relation to procurement by certain public or private persons not subject to Public procurement code.
Coming into force: with the exception of articles that change references that have become obsolete, the Order applies to draft contracts for which a consultation is initiated or a notice of appeal to competition sent to the publication after the date it comes into force. Contracts for which a consultation was initiated before that same date remain subject to the provisions previously applicable.
Notice: the decree introduced in the Public procurement code energy performance contracts by extending the field to other modes of performance. It offers the opportunity for buyers to retain, among the criteria of choice of the most economically advantageous supply, the performance in the development of direct supply of agricultural products. It removes the obligation to link variant and basic offer. It also includes simplification and clarification measures, including the tacit renewal of reconductable markets and price revisions.
References: this decree and the texts it amends can be consulted, in their drafting, on the website Légifrance (http://www.legifrance.gouv.fr).
The Prime Minister,
On the report of the Minister of Economy, Finance and Industry,
Considering Commission Regulation (EC) No 1564/2005 of 7 September 2005 as amended establishing the standard forms for the publication of notices in the framework of procurement procedures in accordance with Directives 2004/17/EC and 2004/18/EC of the European Parliament and the Council;
In light of the amended Directive 2004/17/EC of the European Parliament and of the Council of 31 March 2004 coordinating procurement procedures in the water, energy, transport and postal services sectors;
In view of the amended Directive 2004/18/EC of the European Parliament and of the Council of 31 March 2004 on the coordination of procedures for the procurement of public works, supplies and services;
Vu le general code of territorial authoritiesincluding articles R. 2131-5 and R. 2131-6;
Considering the code of social action and families, including its article R. 123-41;
Vu le Public Health Codeincluding its article R. 1418-13;
Considering the urban planning code, including its articles R.* 300-4, R. 300-9-1, R.* 300-11-1 and R. 300-11-5-1;
Vu le Public procurement code ;
Vu la Act No. 85-704 of 12 July 1985 amended on the mastery of public works and its relationship with the mastery of private works, including Article 18;
Vu la Act No. 2009-967 of 3 August 2009 amended programming relating to the implementation of the Grenelle of the Environment, including Article 5;
See?Order No. 2005-649 of 6 June 2005 amendments relating to contracts passed by certain public or private persons not subject to Public procurement code ;
Vu le Decree No. 2002-232 of 21 February 2002 amended to implement the maximum period of payment in public procurement, including Articles 5 and 7;
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 in relation to procurement by certain public or private persons not subject to 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 in relation to procurement by certain public or private persons not subject to Public procurement code ;
Considering the referral of Mayotte General Council dated 7 March 2011;
Considering the opinion of the Standards Advisory Board dated 31 May 2011;
The State Council (Section of Administration) heard,
Decrete:

  • Chapter I: Provisions Amending the Public Procurement Code Article 1 Learn more about this article...


    The Public Procurement Code is amended in accordance with the provisions of Articles 2 to 34 of this Decree.

    Article 2 Learn more about this article...


    I. ― At the 2nd of Article 3 and the 1st of Article 136, the words "the treaty establishing the European Community" are replaced by the words "the treaty on the functioning of the European Union".
    II. ― In the first paragraph of Article 159, the words "European Community" are replaced by the words "European Union".

    Article 3 Learn more about this article...


    I. ― In the third paragraph of Article 8, the words "and a representative of the Director General of Competition, Consumption and Suppression of Frauds" are replaced by the words ", and a representative of the competition department".
    II. ― In II of sections 23 and 24, the words: "Director General of Competition, Consumption and Suppression of Frauds" are replaced by the words: "Competition Service".

    Article 4 Learn more about this article...


    The fourth paragraph of Article 11 is deleted.

    Article 5 Learn more about this article...


    The third paragraph of Article 16 is replaced by the following provisions: "Unless otherwise stipulated, the renewal provided for in the market is tacit and the licensee cannot oppose it. »

    Article 6 Learn more about this article...


    Section 18 is amended as follows:
    1° After the seventh preambular paragraph of the III, a sub-item is inserted:
    "In the conditional instalment markets governed by section 72, the price of each instalment is updated under the conditions determined by the third to sixth paragraphs of this III. This update is effected on the economic conditions observed at a previous date of three months at the beginning of the instalment benefits. » ;
    2° The V is thus modified:
    (a) After the words: "a price revision clause including", the words "at least" are inserted;
    (b) After the words: "in accordance with", the words: "1° of" are deleted.

    Article 7 Learn more about this article...


    Article 26 II is amended as follows:
    1° The second and third paragraphs are replaced by the following:
    "1° 125 000 € HT for supplies and services markets, not mentioned in 2° to 4° below, the State and its public institutions;
    "2° 193 000 € HT for supplies and services markets of local authorities, public health institutions and institutions of the military health service; » ;
    2° In the fourth paragraph, after the words: "€193,000 for them", are added the words: "markets of";
    3° The sixth preambular paragraph shall be replaced by the following:
    « 5° 4 845 000 € HT for the construction markets. »

    Article 8 Learn more about this article...


    I. ― Section 27 is amended as follows:
    1° The last sentence of the second paragraph of the III is replaced by a sentence as follows:
    "No matter what option is chosen, where the cumulative value of the lots is equal to or greater than the formalized procedural thresholds defined in Article 26, the procedure or procedures to be implemented are the formalized procedures referred to in Article I. » ;
    2° In VI, the words: "the thresholds referred to in Article 26 II of this Code" are replaced by the words: "the formalized procedural thresholds defined in Article 26".
    II. ― At 4° of II of Article 35 and II of Article 54, the words: "at the thresholds fixed in II of Article 26" are replaced by the words: "at the formalized procedural thresholds defined in Article 26".
    III. ― In the third of Article 69, the words: "at the threshold fixed in Article 26 II" are replaced by the words: "at the formalized procedural thresholds defined in Article 26".
    IV. ― Article 145 is read as follows:
    "The provisions of Article 27 shall apply, subject to the substitution of the words "defined in Article 144 III" to the words "defined in Article 26" and the words "the value of supplies and services" to the words "the value of supplies". »
    V. ― In the first paragraph of Article 146, the words: "at the threshold referred to in Article 144 III" are replaced by the words: "at the formalized procedural thresholds defined in Article 144 III".

    Article 9 Learn more about this article...


    Section 28 is amended as follows:
    1° In the first paragraph, the words: "at the thresholds referred to in Article 26 II" are replaced by the words: "at the formalized procedural thresholds defined in Article 26";
    2° The third paragraph is replaced by the following:
    "For the determination of these terms, the procuring power can be guided by formalized procedures, without the fact that the markets in question are then subject to the formal rules they contain. However, if it specifically refers to one of these formalized procedures, the procuring authority is required to apply it in its entirety. » ;
    3° The fifth preambular paragraph reads as follows:
    "The procuring authority may decide that the contract will be passed without prior advertising or competition if its estimated amount is less than 4,000 euros HT or in the situations described in Article 35. The lack of advertising and competition may also be justified if such formalities are impossible or are manifestly unnecessary due in particular to the subject matter of the market, its amount or the low degree of competition in the sector. »

    Article 10 Learn more about this article...


    I. ― At the 1st of Article 30, after the words: "The provisions of Article 40 III" are inserted the words: "and the third paragraph of Article 41".
    II. ― At 1° of Article 148 II, after the words: "The provisions of Article 150 III" are inserted the words: "and the third paragraph of Article 41".

    Article 11 Learn more about this article...


    The second paragraph of section 37 is replaced by the following two paragraphs:
    "The procuring powers subject to the provisions of the Act of 12 July 1985 referred to above shall, pursuant to section 18, I, use a design-realization market, regardless of the amount, only if a contractual undertaking on a level of improvement of energy efficiency or technical grounds make it necessary for the association of the contractor to study the work.
    "The technical reasons mentioned in the preceding paragraph are related to the destination or technical implementation of the work. Transactions whose major purpose is a production whose process conditiones the design, realization and implementation as well as operations whose characteristics, such as exceptional dimensions or special technical difficulties, require the use of the proper means and technicality of economic operators. »

    Article 12 Learn more about this article...


    Section 40 is amended as follows:
    1° In I, the word "fourth" is replaced by the word "fifth";
    2° In I and II, the sum of 20,000 euros is replaced by the sum of 4,000 euros;
    3° The III is replaced by the following:
    "III. 1° Where the estimated amount of the need is between 90,000 euros HT and the formalized procedural thresholds defined in Article 26, the procuring authority is required to publish a notice of public appeal to competition either in the Official Bulletin of Public Procurement Ads, or in a newspaper authorized to receive legal announcements, as well as its buyer profile. This notice is prepared in accordance with the model set by order of the Minister responsible for the economy. The procuring authority is not required to include an estimate of the cost of the expected benefits.
    "The procuring authority appreciates whether, given the nature or amount of the supplies, services or work involved, a publication in a specialized newspaper corresponding to the relevant economic sector is also necessary to ensure an advertisement in accordance with the principles set out in section 1. This publication must then be made under conditions specified by an order of the Minister responsible for the economy.
    « 2° Where the estimated amount of the need is equal to or greater than the formalized procedural thresholds defined in Article 26, the procuring authority is required to publish a notice of public appeal to competition in the Official Bulletin of Public Procurement Ads and the Official Journal of the European Union, as well as its buyer profile. This notice is based on the model set out in Regulation (EC) No. 1564/2005. » ;
    4° The IV is replaced by the following:
    "IV. ― The procuring authority may publish, in addition to these notices, a notice of public appeal to competition in another publication under conditions specified by an order of the Minister responsible for the economy. »
    5° The V is repealed and the VI becomes the V;
    6° The VII, which becomes the VI, is amended as follows:
    (a) The first paragraph is supplemented by a sentence as follows: "They are published in paper or electronic form. » ;
    (b) The third paragraph is deleted;
    7° The number " VIII" is deleted;
    8° The IX becomes the VII.

    Article 13 Learn more about this article...


    In the third paragraph of Article 41, the words: " Effective January 1, 2010," are deleted.

    Article 14 Learn more about this article...


    Section 44 is amended as follows:
    1° At the beginning of the first paragraph, the number: "I." is added;
    2° It is added a paragraph to read:
    “II. ― The application for a contract or framework agreement passed in accordance with a formalized procedure, when transmitted electronically, is signed electronically under conditions established by an order of the Minister responsible for the economy. »

    Article 15 Learn more about this article...


    Article 48 I is amended as follows:
    1° The second sentence is deleted;
    2° A second preambular paragraph should read:
    "The agreement for a contract or a framework agreement passed on a formalized procedure, when the offer is transmitted electronically, is signed electronically under conditions set by order of the Minister responsible for the economy. »

    Article 16 Learn more about this article...


    In the third of Article 50, the sentence: "The variants are proposed with the basic offer" is deleted.

    Article 17 Learn more about this article...


    The first paragraph of the III of Article 51 is supplemented by a sentence that reads as follows: "For framework agreements and purchase orders contracts, the notice of undertaking may indicate only the distribution of benefits. »

    Article 18 Learn more about this article...


    At 1° of the I of Article 53, after the words: "Environmental performance", the words are inserted: "the performance in the development of the direct supply of agricultural products".

    Article 19 Learn more about this article...


    Section 56 is amended as follows:
    1° I, II and III are replaced by the following:
    "I. ― In all procurement procedures and framework agreements, the written documents referred to in this Code may be replaced by electronic exchange or production of electronic physical media, as provided for in this Article.
    "The mode of transmission is indicated in the notice of public competition appeal or, in the absence of this notice, in the documents of the consultation.
    "The candidates apply the same mode of transmission to all the documents they address to the procuring power.
    “II. ― The procuring authority may impose the transmission of applications and offers electronically.
    "For the purchase of supplies of computer equipment and computer services in excess of 90,000 euros, applications and offers are transmitted electronically.
    "III. ― For markets in excess of €90,000 HT, the procuring authority cannot refuse to receive documents electronically. » ;
    2° At the beginning of the IV, the words "offers" are deleted;
    3° VI is repealed;
    4° The VII becomes VI.

    Rule 20 Learn more about this article...


    In chapter V of Part III of the Code, a section 3 is reinstated as follows:


    “Section 3



    « Markets combining design,
    implementation and operation or maintenance


    "Art. 73-I. ― Achievement and operation or maintenance markets are public markets that combine operation or maintenance with the delivery of services in order to meet quantified performance objectives defined in particular in terms of level of activity, quality of service, energy efficiency or ecological impact. They have measurable performance commitments. The duration of the market takes into account the time frames required to achieve these objectives and commitments.
    “II. ― Design, implementation and operation or maintenance markets are public markets that combine operation or maintenance with the design and delivery of services in order to meet quantified performance objectives defined in particular in terms of level of activity, quality of service, energy efficiency or ecological impact. They have measurable performance commitments. The duration of the market takes into account the time frames required to achieve these objectives and the commitments that constitute its purpose.
    “If such a contract includes the completion of work that falls within the scope of the Act No. 85-704 of 12 July 1985, the contractor may only be associated with the design for energy performance commitments in one or more existing buildings, or for technical reasons as defined in section 37.
    "The Article 69 IV premium regime is applicable to the markets defined in this II, regardless of their estimated amount.
    "III. ― Where the value of the markets referred to in I and II is less than the formalized procedural thresholds defined in section 26 or where those markets fall under section 30, they may be passed according to the appropriate procedure provided for in section 28.
    "When their estimated value is equal to or greater than the formalized procedural thresholds defined in Article 26, these contracts are passed according to one of the procedures provided for in Article I. When they understand the realization of works that fall within the scope of Act No. 85-704 of 12 July 1985the contracts referred to in II have passed according to the rules set out in I and II of Article 69.
    "IV. ― The markets mentioned in I and II set out the price of all benefits and the terms and conditions of remuneration of the licensee. The pay for operation and maintenance is related to the achievement of measured performance fixed in the market for its duration of execution. The terms and conditions of pay comply with the provisions of the last two sentences of Article 10 and Article 96 of this Code.
    "These markets include, among the bid selection criteria, the overall cost criterion of the offer as well as one or more criteria for the performance objectives set out in I and II, as defined by the subject-matter of the market. »

    Article 21 Learn more about this article...


    Section 74 is amended as follows:
    1° II is thus amended:
    (a) The words: "at the formalized market thresholds set out in Article 26 II" are replaced by the words: "at the formalized procedural thresholds defined in Article 26";
    (b) It is supplemented by the following words: "in the conditions specified in the second paragraph of the III";
    2° The III is thus amended:
    (a) In the fourth preambular paragraph, the words: "at the thresholds of contracts passed on a formalized basis" are replaced by the words: "at the formalized procedural thresholds defined in Article 26";
    (b) At 4°, the third, fourth and fifth preambular paragraphs shall be replaced by the following:
    “(a) Either the negotiated procedure if the conditions of Article 35 are met. In the event of publicity and competition, competition may be limited to the examination of candidates' human and material skills, references and means. The procuring authority, after the jury's opinion as defined in Article 24 I, lists the candidates admitted to negotiate, the number of which cannot be less than three unless the number of candidates is not sufficient. The procuring power is entering into negotiations. At the end of these negotiations, the market is awarded;
    “(b) Either the tender procedure if the terms of section 35 are not met. In this case, a jury composed under the conditions set out in I of Article 24 shall issue a reasoned opinion on applications and offers. » ;
    3° After the III, it is re-established an IV as follows:
    "IV. ― When the conditions for the use of competitive dialogue are met, this procedure may be implemented for the award of a contract or master's master's agreement for the rehabilitation of a work or the realization of an urban or landscaped project.
    "The amount of the award awarded to each participant in the dialogue is equal to the price of all the studies requested by the owner and defined by the regulation of the consultation affected by a slaughter not more than 20%.
    "A jury may be composed in accordance with Article 24 I. In this case, the jury examines the applications and formulates in a report a reasoned opinion on them. The master of work lists the masters admitted to the dialogue in view of this opinion.
    "At the end of the dialogue, the jury examines the final offers, assesses them and class in a reasoned opinion that is the subject of a minutes. He may invite candidates to clarify, clarify, refine or supplement their final offer. The market is attributed to the jury's opinion.
    "The jury shall, where appropriate, decide on the application of the terms and conditions for the reduction or elimination of the premium as defined in the regulation of the consultation or in the notice of public appeal to competition if it considers that the benefits provided are incomplete or are not in accordance with the regulations of the consultation. » ;
    4° The V is repealed.

    Article 22 Learn more about this article...


    In the second paragraph of Article 77 I, the words "to be concluded" are replaced by the words "to provide that the contract is concluded".

    Article 23 Learn more about this article...


    At 1° of Article 78, the word "current" is replaced by the words "and common services".

    Article 24 Learn more about this article...


    The I of section 80 is amended as follows:
    1° The fifth to seventh preambular paragraphs shall be replaced by the following:
    « 2° Compliance with the deadlines mentioned in 1° is not required, on the one hand, in the case of awarding the contract to the sole operator who participated in the consultation, on the other hand, in the case of contracts based on a framework agreement or a dynamic acquisition system. » ;
    2° The ninth preambular paragraph shall be replaced by the following:
    "In order to make applicable to contracts based on a framework agreement or a dynamic procurement system the provisions of the second paragraph of the same article, the procuring authority shall respect a period of not less than sixteen days between the date of sending of the notification provided for in 1° 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 licensees. »

    Rule 25 Learn more about this article...


    I. ― The III of section 85 is replaced by the following provisions:
    "III. ― For contracts equal to or greater than the formalized procedural thresholds defined in Article 26, the notice shall be prepared for publication in the Official Bulletin of Public Contracts and the Official Journal of the European Union in accordance with the model set out in Regulation (EC) No 1564/2005 mentioned above. »
    II.-The III of section 172 is replaced by the following provisions:
    "III. ― For contracts equal to or greater than the formalized procedural thresholds defined in Article 144 III, the notice shall be prepared for publication in the Official Bulletin of Public Contracts and the Official Journal of the European Union in accordance with the model set out in Regulation (EC) No 1564/2005 mentioned above. »

    Rule 26 Learn more about this article...


    The last sentence of the first paragraph I of Article 87 is replaced by the following provisions: "This advance shall be calculated on the basis of the amount of the contract diminished from the amount of benefits entrusted to subcontractors and giving rise to direct payment. »

    Rule 27 Learn more about this article...


    Section 98 is amended as follows:
    1° 1° is thus written :
    "1° 30 days for the services of the State and its public institutions other than those of an industrial and commercial character, with the exception of those mentioned in the 2°, for local authorities and local public institutions; » ;
    2° The 2° is deleted;
    3° The third becomes the second.

    Rule 28 Learn more about this article...


    In the first paragraph of section 106, after the words: "The procuring power shall give the holder", the words "at his request".

    Rule 29 Learn more about this article...


    Article 115 is amended as follows:
    1° In the fourth paragraph, the words: "the amount of the advance provided for in section 87 shall be reduced, for the holder, to the amount corresponding to the benefits in question" shall be replaced by the words: "the advance paid to the holder shall be calculated on the basis of the amount of the contract diminished if any of the amount of the benefits entrusted to the subcontractors and giving rise to direct payment";
    2° The eighth preambular paragraph shall be replaced by the following:
    "The refund of this advance is imputed on the amounts due to the subcontractor in the same manner as those provided for in section 88. » ;
    3° In the ninth paragraph, after the words: "subcontracted benefits", the words are inserted: "and giving rise to direct payment" and the words: "can not or" are deleted.

    Rule 30 Learn more about this article...


    Article 150 is amended as follows:
    1° The III is replaced by the following:
    "III. ― Where the estimated amount of the need is between 90,000 euros HT and the formalized procedural thresholds defined in the III of Article 144, the procuring entity is required to publish a notice of public appeal to competition either in the Official Bulletin of Public Procurement Ads or in a newspaper entitled to receive legal announcements, as well as its buyer profile. This notice is prepared in accordance with the model set by order of the Minister responsible for the economy. The procuring entity is not required to include an estimate of the expected benefit price.
    "The procuring entity appreciates whether, in view of the nature of the amount of supplies, services or work involved, a publication in a specialized newspaper corresponding to the relevant economic sector is also necessary to ensure an advertisement in accordance with the objectives mentioned in section 1. This publication must then be made under conditions specified by an order of the Minister responsible for the economy.
    "When the estimated amount of the need is equal to or greater than the formalized procedural thresholds defined in Article 144 III, the procuring entity is required to publish a notice of public appeal to competition in the Official Bulletin of Public Contracts and the Official Journal of the European Union, as well as its buyer profile. This notice is based on the model set out in Regulation (EC) No. 1564/2005. »
    2° IV is deleted;
    3° The first three sentences and the last paragraph of V, which becomes IV, are deleted;
    4° VI becomes the V;
    5° The VII, which becomes the VI, is amended as follows:
    (a) The first paragraph is supplemented by a sentence as follows: "They are published in paper or electronic form. » ;
    (b) The third paragraph is deleted;
    6° The number " VIII" is deleted;
    7° The IX becomes the VII.

    Rule 31 Learn more about this article...


    Section 168 is amended as follows:
    1° II is thus amended:
    (a) The words: "at the threshold prescribed in Article 144 III" are replaced by the words: "at the formalized procedural thresholds defined in Article 144 III";
    (b) It is supplemented by the following words: "in the conditions specified in the third paragraph of the 3rd paragraph of the III";
    2° The III is thus amended:
    (a) In the first paragraph, the words: "at the threshold prescribed in Article 144 III" are replaced by the words: "at the formalized procedural thresholds defined in Article 144 III";
    (b) At 2°, the words: "he is composed of a jury under the conditions defined in Article 24 I. In this case, the members of this jury appointed pursuant to the d and e of the I of Article 24 shall have an advisory vote" are replaced by the words: "a jury composed under the conditions defined in Article 24 I shall issue a reasoned opinion on applications and offers";
    3° The V is repealed.

    Rule 32 Learn more about this article...


    After section 6 of Chapter VII of Part III of the second part of the code, a section 7 is added as follows:


    “Section 7



    “Specific provisions for associating markets
    design, construction and operation or maintenance


    "Art. 168-2. - The provisions of Article 73 shall apply, subject to the substitution of the words: "Article 168-1" to the words: "Article 69", words: "Article 148" to the words: "Article 30", words: "Article 146" to the words: "Article 28" and words: "Article 144" to the words "Article 26". »

    Rule 33 Learn more about this article...


    Section 177 is replaced by the following:
    "Art. 177.-The provisions of this Code apply to Saint-Pierre-et-Miquelon subject to the following modifications:
    1° The e of Article 24 is not applicable;
    2° Article 40 III is as follows:
    "III. ― Where the estimated amount of the need is between 90,000 euros HT and the formalized procedural thresholds defined in section 26, the procuring authority is required to issue a notice by radio in such conditions that it may generate sufficient competition and to publish a notice of public appeal to competition either in a local publication or, if the characteristics and the amount of the market warrant, in the Official Bulletin of the advertisements
    "When the estimated amount of the need is equal to or greater than the formalized procedural thresholds defined in section 26, the procuring authority is required, on the one hand, to issue a notice by radio in such conditions that it may generate sufficient competition or to publish a notice of public appeal to competition in a local publication and, on the other, to publish a notice of public appeal to competition in the official market »

    Rule 34 Learn more about this article...


    Section 178 is amended as follows:
    1° The third is repealed;
    2° The 10° is replaced by the following:
    « 10° For the purposes of section 56:
    “(a) The second paragraph of the I is supplemented by the following provisions: "In the absence of a specific reference to the selected mode of transmission, the procuring power is deemed to have retained the only method of paper transmission. In this case, applications and offers transmitted electronically are irregular and must be rejected. ”
    “(b) The II and III are applicable as of January 1, 2014. » ;
    3° Two paragraphs are added:
    « 12° For the application of Article 40, in the first sentence of 1° and 2° of the III, after the words "as well" are inserted the words ", beginning January 1, 2014,";
    « 13° For the purposes of section 41, at the beginning of the third paragraph, the words "From January 1, 2014,".

  • Chapter II: Rules applicable to procurement by procuring entities referred to in Article 4 of the above-mentioned Order of June 6, 2005 Rule 35 Learn more about this article...


    The above-mentioned Decree of 20 October 2005 is amended in accordance with the provisions of articles 36 to 39 of this Decree.

    Rule 36 Learn more about this article...


    In Articles 3, 18 and 31, the words "European Community" are replaced by the words "European Union".

    Rule 37 Learn more about this article...


    I. ― In sections 10 and 12, the words "fixed to Article 7 I" are replaced by the words "formalized procedure".
    II.-In the second paragraph of Article 11, the words "as provided in Article 7 I" are replaced by the words "formalized procedure".
    III.-In the first paragraph of Article 16, the words: "as mentioned in Article 7" are deleted.
    IV.-In the first paragraph of Article 30, the words "fixed to Article 7 I" are replaced by the words "formalized procedure".
    V.-At the 1st of Article 41-2, the words: "as provided in Article 7 I" are replaced by the words: "formalized procedure".

    Rule 38 Learn more about this article...


    Article 41-1 is amended as follows:
    1° The second paragraph is replaced by the following two paragraphs:
    "The procuring entities referred to in Article 1 of Act No. 85-704 of 12 July 1985 relating to the mastery of public works and its relationship with the mastery of private works may, pursuant to Article 18, I of this Act, use a design-realization market, regardless of the amount, only if a contractual undertaking on a level of improvement of the technical efficiency or of the reasons required
    "The technical reasons mentioned in the preceding paragraph are related to the destination or technical implementation of the work. This form of market applies to operations whose major purpose is a production whose process conditiones the design, realization and implementation as well as those whose characteristics, such as exceptional dimensions or special technical difficulties, require the use of the proper means and technicality of economic operators. »
    2° In the first paragraph of the IV, the words: "defined for labour markets in Article I of this Decree" are replaced by the words: "formalized procedure";
    3° The second paragraph of IV is deleted.

    Rule 39 Learn more about this article...


    Article 44 I is amended as follows:
    1° The 2° is replaced by the following:
    « 2° Compliance with the deadlines mentioned in 1° is not required, on the one hand, in the case of awarding the contract to the sole operator who participated in the consultation, on the other hand, in the case of contracts based on a framework agreement or a dynamic acquisition system. » ;
    2° The second paragraph of 3° I is replaced by the following:
    "In order to make applicable to contracts based on a framework agreement or a dynamic procurement system the provisions of the second paragraph of the articles cited in the preceding paragraph, the procuring entity shall respect a period of not less than sixteen days between the date of the notification provided for in 1° and the date of the contract. This deadline is reduced to at least eleven days in the event of electronic transmission of notification to all interested licensees. »

  • Chapter III: Rules applicable to contracts passed by the procuring powers referred to in Article 3 of the above-mentioned Order of June 6, 2005 Rule 40 Learn more about this article...


    The above-mentioned decree of 30 December 2005 is amended in accordance with the provisions of articles 41 to 45 of this Decree.

    Rule 41 Learn more about this article...


    I. ― In sections 10 and 12, the words "fixed to Article 7 I" are replaced by the words "formalized procedure".
    II. ― Section 11 is amended as follows:
    1° In the second paragraph of II, the words "as provided in Article 7 I" are replaced by the words "formalized procedure";
    2° In V, the words "as mentioned in Article 7 I" are replaced by the words "formalized procedure".
    III. ― In the first paragraph of Article 16, the words: "as mentioned in Article 7" are deleted.
    IV. ― In the first paragraph of Article 25 II and Article 33, paragraph 4, the words "fixed to Article 7 I" are replaced by the words "formalized procedure".
    V. ― At 1° of Article 41-2, the words "as provided in Article 7 I" are replaced by the words "formalized procedure".

    Rule 42 Learn more about this article...


    In Article 17, the words "European Community" are replaced by the words "European Union".

    Rule 43 Learn more about this article...


    In the second paragraph of Article 25, the words "in the meaning of the previous article" are deleted.

    Rule 44 Learn more about this article...


    Article 41-1 is amended as follows:
    1° The second paragraph is replaced by the following two paragraphs:
    "The procuring powers referred to in Article 1 of Act No. 85-704 of 12 July 1985 relating to the mastery of public works and its relationship with the mastery of private works cannot, pursuant to Article 18, I of this Act, use a design-realization market, regardless of the amount, unless a contractual undertaking on a level of improvement of the technical efficiency or of the reasons required
    "The technical reasons mentioned in the preceding paragraph are related to the destination or technical implementation of the work. This form of market applies to operations whose major purpose is a production whose process conditiones the design, realization and implementation as well as those whose characteristics, such as exceptional dimensions or special technical difficulties, require the use of the proper means and technicality of economic operators. » ;
    2° In the first paragraph of the IV, the words: "defined for labour markets in Article I of this Decree" are replaced by the words: "formalized procedure";
    3° The second paragraph of IV is deleted.

    Rule 45 Learn more about this article...


    Article 46 I is amended as follows:
    1° The 2° is replaced by the following:
    « 2° Compliance with the deadlines mentioned in 1° is not required, on the one hand, in the case of awarding the contract to the sole operator who participated in the consultation, on the other hand, in the case of contracts based on a framework agreement or a dynamic acquisition system. »
    2° The second paragraph of the 3rd paragraph is replaced by the following:
    "In order to make applicable to contracts based on a framework agreement or a dynamic procurement system the provisions of the second paragraph of the articles cited in the preceding paragraph, the procuring authority shall respect a period of not less than sixteen days between the date of the notification provided for in 1° 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 licensees. »

  • Chapter IV: Rules applicable to the implementation of the maximum period of payment in public procurement Rule 46 Learn more about this article...


    The above-mentioned Decree of 21 February 2002 is amended in accordance with the provisions of articles 47 to 49 of this Decree.

    Rule 47 Learn more about this article...


    Article 5 II is amended as follows:
    1° At 2°, the words "at 1° and 2° of Article 98" are replaced by the words "at 1° of Article 98";
    2° At 3°, the words "at 3° of Article 98" are replaced by the words "at 2° of Article 98".

    Rule 48 Learn more about this article...


    The first four paragraphs of Article 7 are replaced by the following:
    "When the orderer and the public accountant do not fall within the same legal entity, the public accountant shall, in order to carry out the regulatory duties it is responsible, have a maximum period of ten days. For public health institutions and institutions of the military health service, this period is fifteen days. »

    Rule 49 Learn more about this article...


    I. ― After title IV, a title V is inserted as follows:


    « TITRE V



    " APPLICABLE PROVISIONS TO MAYOTTE


    "Art. 10-1.-This decree is applicable to Mayotte subject to the following modifications:
    « 1° The reference to theArticle 98 of the Public Procurement Code is replaced by the reference toArticle 178 of the Public Procurement Code.
    « 2° When the orderer and the public accountant do not fall within the same legal entity, the public accountant shall, in order to carry out the regulatory duties it is responsible, have a maximum period of fifteen days. »
    II.- Title V becomes title VI.


Done on 25 August 2011.


François Fillon


By the Prime Minister:


Minister of Economy,

finance and industry,

François Baroin

The Minister of the Interior,

of the Overseas, territorial authorities

and immigration,

Claude Guéant


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