This country-specific Q&A provides an overview of Public Procurement laws and regulations applicable in France.
Please summarise briefly any relationship between the public procurement / government contracting laws in your jurisdiction and those of any supra-national body (such as WTO GPA, EU, UNCITRAL)
The French public procurement laws, as with any other country in the EU’s jurisdiction, are substantially determined by European laws. Public procurement is a major component of the common European market, which finds concrete translation in the principles of public procurement.
The EU is a member of the WTO Government procurement agreement (GPA). Therefore, members of the European union must comply with GPA’s provisions. Public procurement contracts also have to comply with the ECHR case laws and other supra-national bodies.
The French regulations can also find inspiration in soft law instruments such as the UNCITRAL Model Law on Public procurement.
What types of public procurement / government contracts are regulated in your jurisdiction and what procurement regimes apply to these types of procurements?
The following laws regulate public procurement in the EU :
Directive 2014/24/EU on public procurement
Directive 2014/25/EU on procurement by entities operating in water, energy, transport and postal services sectors
Directive 2014/23/EU on the award of concession contracts
Directive 2009/81/EC on defence and sensitive security procurement
Regulation No 1370/2007 on public passenger transport services by rail and by road
Remedies Directive for the public sector (Directive 89/665/EEC)
Remedies Directive for the utilities sector (Directive 92/13/EEC)
Both Remedies Directives were substantially amended by Directive 2007/66/EC.
Under the French legislation a Code of public procurement contains the regime applicable to all public procurement. The fundamental principles are defined in articles L1 to L6 of this Code. The Code distinguishes two main categories of contracts:
Marché publics (called public procurement under the Directive 2014/24/EU)
Concession contracts (Directive 2014/23/EU)
Special regulations are provided for military procurements. The Code also contains specific regimes for complex contracts such as: Public private partnerships.
Three different regimes apply to public procurement contracts:
Above EU financial thresholds: Formalised procedures with prior publication and competition;
Above national financial thresholds: Adapted procedures with terms and conditions decided by the contracting authority;
Below national financial thresholds: Without prior publication and competition.
Are there specified financial thresholds at which public procurement regulation applies in your jurisdiction?
The general principles of the public procurement regulations are applicable to any contract concluded for valuable consideration by a purchaser or a licensing authority, to meet its needs for works, supplies or services.
Financial thresholds related to the nature of procurement and the purchasing sector are set to decide the type of competition procedures required.
EU financial thresholds are accessible via the following link :
Are procurement procedures below the value of the financial thresholds specified above subject to any regulation in your jurisdiction? If so, please summarise the position.
Any contract below the value of the national financial thresholds is made under a procedure without prior publication and competition.
However, these procedures must comply with the public procurement principles:
For the procurement of complex contracts*, how are contracts publicised? What publication or journal is used for these purposes?
The competitive procedure with negotiation, the competitive dialogue and the innovation partnership aim to provide flexibility for complex purchases. Therefore, the complexity of the contract is a required condition to select these procedures.
A contract notice, commonly referred to as a “Notice of Public Call for Competition (NCCC)” is publicised in the BOAMP and in the OJEU. The minimum period required between the publication of the advert and the bidder’s respond is 30 days.
The contract is also publicised within 30 days of its conclusion at the BOAMP and the OJEU.
For the procurement of complex contracts, where there is an initial selection stage before invitation to tender documents are issued, what are typical grounds for the selection of bidders?
The competitive procedure with negotiation, the competitive dialogue and the innovation partnership aim to provide flexibility for complex purchases. Therefore, the complexity of the contract is a required condition to select the competitive dialogue.
These procedures have an initial selection stage. The tenders have to ask to participate in response to the contract notice publicised. The contracting authority selects a minimum of three candidates for their capacity to perform the contract, or in the case of an innovation partnership, for their capacity to offer innovative solutions.
Does your jurisdiction mandate that certain bidders are excluded from tendering procedures (e.g. those with convictions for bribery)? If so what are those grounds of mandatory exclusion?
The French public procurement Code sets mandatory grounds for exclusion. Any tenders convicted for various penal laws such as corruption, fraud, money laundering, or a breach of obligations relating to the payment of taxes or social security contributions are excluded from the procedures.
Discretionary grounds are also set to avoid cases of conflicts of interest, significant or persistent deficiencies in the performance of public contracts, undertaking serious misrepresentation in supplying information, or unduly influencing the decision-making process of the contracting authority.
Please describe a typical procurement procedure for a complex contract. Please summarise the rules that are applicable in such procedures.
A typical procurement procedure for complex contracts (such as competitive procedure with negotiation or competitive dialogue) includes three key stages.
The procedure starts with the definition of the needs, the publication of the contract notice and the preselection of the tenderers. This stage takes at least 6 weeks.
The contracting authority starts a dialogue with the shortlisted economic operators. This stage has no legal limitation in terms of duration. This process can last from a few months to more than a year.
The last stage is the selection and evaluation of the offers evaluated on the basis of the most economically advantageous tender criteria. This stage takes at least a month. Indeed it is mandatory to respect a standstill period of 16 days before the conclusion of the contract.
As a result, the total length of such a procedure is at least six months. Actually, complex contractual arrangements that include a stage of negotiation can last years.
If different from the approach for a complex contract, please describe how a relatively low value contract would be procured?
The contract procedures below the national thresholds (40 000€) are free to be made without prior publication and competition. This threshold is raised until July 22nd, 2021 to 70 000€.
However as stated before, these contracts must respect the key principles of public procurement. As a good practice, the contracting authority organizes a short competition between three tenderers.
What is seen as current best practice in terms of the processes to be adopted over and above ensuring compliance with the relevant regime, taking into account the nature of the procurement concerned?
To avoid any requalification risk, the contracting authority can choose the most demanding procedure.
For ensuring compliance with the relevant regime, the contracting authorities are also professionalizing their agents. Hiring experts and set-up commissions to evaluate offers become common practice. This approach is key to ensuring good definition of the needs, and decreases the potential asymmetry of information between the contracting authority and economic operators. The conclusion of the contract is mandatory and is preceded by a standstill period exceeding the EU financial threshold. A good practice is also to respect a stand still period for other procedures.
The implementation of provisions concerning conflicts of interest and distortion of market competition is also a good practice directly linked with the smooth running of the procedure.
The development of CSR criteria and risk based due diligences, which allow extra-financial assessment of the tenderers, are also good practices that are incentivised by compliance provision such as in/ for example Loi Sapin II (the French version of the FCPA).
Please explain any rules which are specifically applicable to the evaluation of bids.
First, the contracting authority eliminates irregular, unacceptable, and inappropriate offers. When the procedure allows it, the contracting authority offers the possibility to correct the bid. Abnormally low offers are also discarded to give place to the bidder to justify the price.
The evaluation and selection of bids is based on the criterion of the “most economically advantageous tender”.
If the price is most often decisive, the choice can also be made according to technical criteria or to conditions of execution.
Please describe any rights that unsuccessful bidders have that enable them to receive the reasons for their score and (where applicable in your jurisdiction) the reasons for the score of the winning bidder.
As soon as the contracting authority has made their choice, they are obliged to inform the unsuccessful bidders that the offer has not been accepted.
For the contracts exceeding the EU financial thresholds, it is mandatory to notify the reasons for the rejection, however the contracting authority is only obliged to communicate the chosen bid to the unsuccessful bidder who requests it. The contracting authority has to respect a period before the conclusion of the contract. Those 16 days (11 for an electronic notification) allows the unsuccessful bidders to refer any matter to the judge using a simplified procedure: the pre-contractual referral.
In the case of a procedure exceeding the national financial thresholds it is only mandatory to communicate the reasons for the rejection and to communicate the chosen bid to the bidder who requests for it.
What remedies are available to unsuccessful bidders in your jurisdiction?
During the “standstill” period (the 16 or 11 days mentioned above), any unsuccessful bidder can bring a pre-contractual referral. This emergency procedure is closed after the conclusion of the contract. The unsuccessful bidder can only invoke breaches related to the rules of publicity and competition. It must be shown by the applicant that the breach has caused or is likely to cause injury or damage. The chances of success are generally quite slim.
Within 31 days after the publication in the OJEU, it is possible to exercise a contractual referral if the bidder didn’t bring a pre-contractual referral. This remedy meets the same requirements as the pre-contractual referral. The cancellation of the contract is more difficult because it has already been concluded. During the life of the contract, an unsuccessful bidder who is able to prove/demonstrate prejudice in the conclusion/outcome of the contract, is able to refer the matter to the judge. This remedy is open for two months after the publication of the contract. The judge can cancel or interrupt the contract.
Are public procurement law challenges common in your jurisdiction?
Public procurement law challenges are common in France. Very few result in the cancelation of the contract. The unsuccessful bidders must prove that the choice of the contracting authority is the consequence of the invocated breach.
Fees depend on the chosen law firm and the complexity of the case. It is possible to obtain the reimbursement of the costs from the losing party.
Typically, assuming a dispute concerns a complex contract, how long would it take for a procurement dispute to be resolved in your jurisdiction (assuming neither party is willing to settle its case).
Before tribunal, the average time between the filing of a motion and its judgment is between seven months and two and a half years, depending on the nature and difficulty of the case.
The good news is that the judge has created emergency procedures for public procurement. For pre-contractual and contractual referral, the judge makes a decision within a period ranging from a few days to a month.
Note that appeals to the supreme court are often useless, because it is non-suspensive.
What rights/remedies are given to bidders that are based outside your jurisdiction?
Foreign bidders are given the same rights and remedies granted to national bidders.
Where an overseas-based bidder has a subsidiary in your territory, what are the applicable rules which determine whether a bid from that bidder would be given guaranteed access to bid for the contract?
Overseas-based bidders with subsidiaries in France are given the same rights and remedies as nationally owned companies.
In your jurisdiction is there a specialist court or tribunal with responsibility for dealing with public procurement issues?
Public procurement issues are shared between administrative and judicial courts. The courts’ jurisdiction depends on the legal personality of the contracting authority. Administrative courts deal with contracts made by public entities, whereas judicial ones have jurisdiction over public procurement contracts which have been made by private companies. Most often, the administrative courts are competent.
Are post-award contract amendments/variations to publically procured, regulation contracts subject to regulation in your jurisdiction?
Any substantial modification could lead to the necessity of terminating the contract and procuring a new one. Changes in the identity of the supplier are considered to be a substantial modification.
There are two hypotheses in which the change in supplier is not a substantial change:
The modification is provided by a clause;
After a restructuring operation of the supplier, if it does not lead to other substantial modifications.
How common are direct awards for complex contracts (contract awards without any prior publication or competition)?
Direct awards are legal where the works, supplies or services can be supplied only by a particular economic operator for technical or artistic reasons or for the protection of an exclusive right.
An unsuccessful procedure is also a legal justification for the direct award of contracts.
In the case of in-house contracts, i.e. when the contracting party is merely an extension of the public entity, contracts concluded between these two functionally identical entities are not subject to the rules of public procurement, and therefore to the rules of competitive bidding.
These cases remain exceptional. The contracting authorities bear the burden of proof for the justifying circumstances.
Within a period of 2 months, the contract can be challenged by a third party who justifies any prejudice in the conclusion of the contract.
Have your public procurement rules been sufficiently flexible to allow contracting authorities to respond to the COVID-19 pandemic? What measures have been most used and in what areas have any difficulties arisen? Is it likely that lessons learned from procurement during this period will give rise to longer term changes?
Covid-19 has changed the daily life of public purchasers in just a few months. In legal terms, they have had to incorporate new changes to public procurement regulations, such as the “Asap” law which came into effect on the 7th December 2020, and which notably raised the threshold for work contracts up to €100,000 until 2022, and introduced the possibility of awarding contracts by mutual agreement for reasons of general interest.
During this period of increased health emergency, when an existing contract has expired by two months, (i.e. at this stage until 24 July 2020) and it is impossible to organise a new competitive tendering procedure or to complete one in time before the expiry of the current contract, it is possible to extend this contract by means of an amendment beyond the initial term.
If the holder of a contract is unable to perform the services which are the subject of the contract or a purchase order, the purchaser may conclude a substitute contract either on the grounds of simple urgency or on the grounds of extreme urgency, if he fulfils the conditions thereof.
The Coronavirus health crisis is clearly an unforeseen circumstance which may justify modifications, provided that the contracting authority can demonstrate a causal link between the consequences of the crisis and the need to modify the contract, as well as the strictly necessary nature of the modifications it wishes to make to the contract.
The COVID-19 pandemic gave rise to long term changes. The crisis has boosted dematerialisation and the deployment of new solutions, such as videoconferencing. These changes and the development of new tools will undoubtedly continue long-term.
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