EU Law

• Directive 2014/23/EU on the award of concession contracts dated February 26, 2014;
• Directive 2014/24/EU on public procurement dated February 26, 2014;
• Directive 2014/25/EU on procurement by entities operating in the water, energy, transport and postal services sectors dated February 26, 2014;
• Directive 2014/55/EU on electronic invoicing in public procurement dated April 16, 2014;
• Directive 2009/81/EC on procurement in the defense and security sector dated July 13, 2009;
• Regulation EU 2016/7 dated January 5, 2016 establishing the standard form for the European Single Procurement Document (ESPD)

International Agreements

• WTO Agreement on Government Procurement (GPA)

National Law

• The Public Procurement Code (LeCode de la commande publique) is a codified legislative act regulating public procurement relations (taking into account the differences between public contracts, concession agreements and public-private partnerships). Effective since April 1, 2019, it consolidated the provisions of more than 30 regulations. It consists of two parts: the first is legislative (la partie législative) and the second is regulatory (la partie réglementaire). With a structure that follows the chronology of the contract, it contains information on the rules of supplier selection, contract awarding/ amendment/ termination and requirements for the performance of contract obligations. The initial version included 1,747 articles, with the latest changes effective 1 January 2023.
• Regional Code (Le Code général des collectivités territoriales) (concerning the interaction between tender commissions and regional authorities).
• Code of Administrative Justice (Le code de la justice administrative) (regarding judicial procedures on appeals against the outcome of competitive tendering procedures).
• Criminal Code (Le code pénal) (for offences relating to the violation of the principles of free and equal access to public procurement – favoritism). The Sapin II Law dated December 9, 2016 “On Transparency, Combating Corruption and Modernization of Economic Life” sets the penalty for favoritism at two years' imprisonment and a fine of EUR 200,000. Examples of favoritism include disclosure of insider information, artificial splitting of contracts (le saucissonnage) in order to avoid a formal tender procedure. Illegal profit making (la prise illégale d'intérêt), corruption (la corruption), influence peddling (le trafic d'influence), bribery (la concussion) are the most common offences in public procurement.
• Notices and orders that are annexes to the Public Procurement Code (21 annexes in the current version of the document).
• Compendium of General Administrative Rules (Les cahiers des clauses administratives générales, CCAG) contains provisions applicable to a certain category of contracts. They are non-binding. They apply only to government contracts that specifically mention them. The Legal Department of the Ministry of Economics, Finance, Industry and Digital Sovereignty has developed a Practical Guide on the application of the relevant administrative rules.
• The Compendium of General Technical Regulations (Les cahiers des clauses techniques générales) establishes technical regulations for construction and civil engineering.
• Normative instruments aimed at making public procurement “green”:
• Law No. 2021-1104 dated August 22, 2021 “On Combating Climate Change and Building Resilience” (Loi № 2021-1104 du 22 août 2021) — Art. 35–39;
• Decree No. 2022-767 dated May 2, 2022 (Décret n° 2022-767 du 2 mai 2022).
• Normative instruments that incentivize the development of a circular economy:
• Law No. 2020-105 dated February 10, 2020 “On Combating Waste and the Circular Economy" (Loi № 2020-105 du 10 février 2020) — Art. 58.
• Decree No. 2021-254 dated March 9, 2021 (Décret n° 2021-254 du 9 mars 2021) establishes the obligation to purchase, through public procurement, goods produced by reuse or recycling.
• The Order dated December 3, 2021 (Arrêté du 3 décembre 2021) establishes rules for the declaration of expenses related to the acquisition of goods made from recycled materials.
• Public procurement contracts and concession contracts entered into before April 1, 2019 are subject to the provisions of normative instruments in force before that date. A list of normative instruments is available at the link

• Ministry of Economics and Finance (Ministère de l'Économie et des Finances). It is responsible for general coordination of issues related to the development of the public procurement system.
• The General Directorate of Competition, Consumption & Repression of Frauds (Direction générale de la concurrence, de la consommation et de la répression des fraudes) monitors the transparency of the public procurement process and detects unfair non-competitive practices.
• The Competition Authority (L'Autorité de la concurrence) is an independent administrative body in charge of detecting anti-competitive practices, analyzing markets and regulating monopolies.

The distribution of powers between the directorates is set out in Law No. 2008-776 dated August 4, 2008 (La loi n° 2008-776 du 4 août 2008).

• Union of Public Purchasing Groups (Union des groupements d'achats publics, UGAP). It acts as a single “point of entry” for organizations wishing to participate in public procurement.

In accordance with the Digital Transformation Plan for Public Procurement 2017–2022 (Le plan de transformation numérique de la commande publique 2017-2022) the following projects have been implemented:

• Digital Public Procurement Platform (La plateforme des achats de l'État, PLACE): publication of information on orders for the supply of goods, works and services;
• APProch digital platform: publication of public procurement projects before official procedures;
• Chorus Pro platform: e-invoicing;
• DUME (Le Document unique de marché européen): filling in the standard European public procurement application form.

The Public Procurement Code (LeCode de la commande publique) distinguishes two types of contracts under the public contracting system:

• government contract (Le marché public) is a contract entered into by one or more purchasers with one or more economic operators for works, goods or services in exchange for a cash consideration or any equivalent. The purchasers (Les acheteurs) are contracting authorities^[1] (les pouvoirs adjudicateurs) and contracting entities^[2] (les entités adjudicatrices). An economic operator (opérateur économique) is an individual or a legal entity, public or private (or a group of persons, with or without the participation of a legal entity), who makes a market offer to perform work, supply products or provide services. Government contracts include the following types:
• public-private partnerships, PPP (marché de partenariat) are public contracts, the subject matter of which is the construction, transformation, reconstruction, dismantling or demolition of facilities, equipment or intangible goods necessary for the provision of public services or the fulfilment of public functions. Funding is wholly or partially provided by the economic operator. The contract holder is responsible for project management. Under PPP, any public organization may act as a contracting entity, except for those specified in Art. L2211-1 of the Code.
• public defense and security contracts (Le marché de défense ou de sécurité). More details in Art. L1113-1 of the Code.
• concession agreement (Le contrat de concession) is a contract, under which the concession grantor (the contracting entity specified in the Code) entrusts the performance of work or services to one or more economic operators (the concessionaire) in exchange for the right to use the subject matter of the concession agreement or for a fee. The differences between concession agreements and government contracts lie in the subject matter of the contract and the “existence of a risk transfer” (l’existence d’un transfert de risque).

Public Procurement Stages

• Publication of a public procurement announcement. Bidders prepare tender documentation.
• Selection stage. The procedure varies depending on the type of contract and its value.
• In the case of a contract for fulfillment of an order, where the contractor has been identified, the procurement shall be carried out without prior negotiation.
• In the case of a framework agreement, there are two possible cases:
• if the contracting entity has selected a single contractor, the contracting entity requests a quotation (if necessary), following the review of which the contract is awarded;
• if the contracting entity has selected several contractors, a tender is organized, following which the contract is awarded to one of these contractors.

In case of a “regular” or “fixed” contract, different options are possible (depending on the subject matter of the contract and its value).

^[1] According to Article 1211-1 of the Code, contracting authorities are public legal entities (the state, collectivities, public institutions) and private legal entities purposefully established to meet public needs, which are not engaged in industrial or commercial activities (the activities of private legal entities are financed and controlled by the state; their management consists of members, more than half of whom are appointed by the state).

^[2] According to Articles 1212-3 and 1212-4 of the Code, contracting entities are public enterprises acting as a “network operator” (des activités d'opérateur de réseaux), providing public utility services in the fields of production, transport, electricity and water supply, postal communications and integrated land development (including mining).