Contrats de la Commande Publique et Autres Contrats (Part I)

Abstract

France has established the Public Procurement Code in 1964 (code des marchés publics) and has been revised throughout. This code followed the EU Regulations in accordance with the Treaty on the Functioning of the European Union that focuses on being a single market allowing citizens in the member states of the European Union or the World Trade Organization to have equal rights to compete in government procurement in the State Parties with the citizens of that State Party.

In 2014, the Directive 2014/24/EU of the European Parliament and of the Council of 26 February 2014 on public procurement has updated the EU Regulations relating to the public procurement and has repealed the Directive 2004/18/EC on the coordination of procedures for the award of public works contracts, public supply contracts and public service contracts. This new directive sets the norms and minimum rules for member states on public procurement to make the provision of goods and services that are socially efficient and sustainable. For example, necessary specifications for public civil work, provision of services and procurement to achieve the objectives of social sustainability. This directive sets also a minimum standard of safety methods for evaluating the quality of packaging products and recommendations for use.

In addition to setting minimum rules for procurement for sustainability, this directive has been initiated a new principle of responsibility for all line of subcontract which small to medium enterprise (SME) is able to participate effectively by forcing every section of subcontract to be responsible for respecting the basic rights, health and safety of workers and also labour laws that are currently in force. This principle is aim to correct the cases where tenders bid lower than a normal prize to award the contract due to the lack of respect for basic rights in labour that reduces the cost of the companies and it turns out that the quality of the products and works are poor.

Following the EU Directive in 2014, France has adopted the law to comply with the regulations by issuing the Ordinance relating to public procurement in 2015 and the Ordinance relating to the concession in 2016. These ordinances led to the revision of the current procurement code (Code de la commande publique, 2019) and have cancelled the original procurement code (Code des marchés publics, 1964).

This amendment was made to make the procedure easier and clearer for everyone involving in public procurement. This new code is a collection of content that purchasing power and economic entrepreneurs use in the daily life of procurement including the main rules and guidelines of the Administrative Court.

This article provides the rules related to the current public procurement law which is divided into four parts as follows:

- I. the general definition and organizations that are subject to the procurement code;
- II. the purpose of the contract within the framework of the procurement law and different types of contracts;
- III. the concession contract under the Procurement Code;
- IIII. the nature of the contract excludes from the Procurement Code.