French Public Procurement (Commande Publique)

Foundations of French Public Procurement

French public procurement law governs the awarding and performance of contracts by public purchasers, encompassing marchés publics (public supply, service, and works contracts) and concessions (delegations of public services). The field underwent comprehensive codification with the enactment of the Code de la commande publique by Ordinance No. 2018-1074 of 26 November 2018, effective from 1 April 2019. This code consolidates the previously fragmented legislative and regulatory framework, reflecting both European Union procurement directives (Directives 2014/24/EU, 2014/25/EU) and distinctive French administrative law principles.

The Code de la commande publique is structured in four parts: general provisions common to all procurement contracts; rules specific to marchés publics; rules specific to concessions; and provisions governing the achat public (public purchasing function). It applies to the State, local authorities (collectivités territoriales), their public establishments, and other bodies governed by public law that meet the functional definition of pouvoir adjudicateur (contracting authority) or entité adjudicatrice (contracting entity for utilities sectors).

Principles of Procurement

Public procurement in France is governed by three fundamental principles derived from EU law and codified at Article L3 of the Code de la commande publique: freedom of access to public contracts, equal treatment of candidates, and transparency of procedures. These principles underpin the entire procurement lifecycle, from the definition of needs through the award of the contract to its execution. The principle of equal treatment prohibits contracting authorities from discriminating between economic operators and requires that all candidates receive the same information under the same conditions. Transparency obliges authorities to publish contract notices, disclose award criteria, and provide reasons for their decisions.

Formalised Procedures

For contracts exceeding EU thresholds (adjusted periodically), contracting authorities must follow formalised procedures designed to ensure competition and transparency. The appel d’offres ouvert (open procedure) allows any interested economic operator to submit a tender. The appel d’offres restreint (restricted procedure) involves a pre-selection phase in which candidates submit applications, followed by an invitation to tender. The procédure concurrentielle avec négociation allows the authority to negotiate the terms of the contract with selected candidates, used where the authority’s needs cannot be met without adaptation. The dialogue compétitif is reserved for particularly complex contracts where the authority cannot define the technical means of satisfying its needs.

Below the EU thresholds, simplified procedures apply, including the marché sans publicité ni mise en concurrence (for very low-value contracts) and the procédure adaptée (MAPA), which offers flexibility while respecting the basic principles of transparency and equal treatment. The Code de la commande publique also provides for accords-cadres (framework agreements), systèmes d’acquisition dynamiques, and enchères électroniques.

Award Criteria

Contracts are awarded either on the basis of the offre économiquement la plus avantageuse (most economically advantageous tender), assessed against criteria such as cost, quality, environmental characteristics, and social considerations, or on the basis of the lowest price alone. The Code de la commande publique encourages the use of qualitative criteria, including life-cycle costing, innovation, and integration of social and environmental objectives (achat public durable). Article L2152-7 requires that award criteria be linked to the subject matter of the contract and disclosed in the procurement documents.

Concessions

Concession contracts, governed by Part III of the Code de la commande publique, involve the transfer of operating risk to the concession holder. In a concession de services, the concessionaire assumes the risk of operating the service in exchange for the right to exploit it, typically through user charges. Concessions have historically been used for public services such as water distribution, motorway operation, and urban heating networks. The loi Sapin of 29 January 1993 introduced procedural requirements for the award of délégations de service public by local authorities, which were subsequently harmonised with EU concession directives.

Remedies and Dispute Resolution

Disputes arising from public procurement may be brought before the administrative courts. The référé précontractuel allows an unsuccessful candidate to challenge the award procedure before the contract is signed, seeking suspension or annulment of the procedure. The référé contractuel permits challenges after the contract has been entered into, where procedural violations are established. In addition, the recours en concurrence enables third parties to contest the legality of the award decision. The Conseil d’État has developed a rich case law on procurement remedies, including the requirement for authorities to disclose the reasons for rejection to unsuccessful tenderers.

Consular dispute resolution through arbitration is available for certain procurement disputes, particularly those involving international elements. The Comité consultatif de la règlementation des marchés publics and the Autorité de régulation des communications électroniques, des postes et de la distribution de la presse (ARCEP) may also exercise advisory or supervisory functions in their respective sectors.