The CCAG-TIC, or Cahier des Clauses Administratives Générales for information and communication technology contracts, is the framework governing the award of IT goods and services contracts by the French public administration. As a contractor, it is important to know the points to watch when using the CCAG-TIC in order to secure the success of the project.
What is the CCAG-TIC?
Before turning to the points to watch, it is essential to understand the CCAG-TIC properly. This document, amended in 2021 (the previous revision dated from 2009), works like general conditions of purchase and can apply to a public procurement contract for information and communication technology (ICT).
The CCAG-TIC sets out the terms and conditions applying to public procurement contracts in the ICT field (software, IT development, application maintenance and so on). It covers a wide range of aspects, including intellectual property rights, data protection and performance monitoring.
CCAG-TIC: points to watch
Duty to advise
The obligation to warn and advise is one of the main innovations in this 2021 version of the CCAG-TIC (Art. 3.9). Seemingly innocuous, this new “ongoing duty to advise and warn” requires the contract holder to have an overall view and expertise of the information system, so as to give warning of any difficulties, security issues and other delays that may arise.
Software updates and versioning
Another significant change in the 2021 vintage of the CCAG-TIC concerns software updates and new versions (Art. 22). Unless expressly derogated from, contracts covering the supply of software, both off-the-shelf and bespoke, include by default the delivery of updates and new software versions.
So take care to allow for the impact, financial in particular, of these software updates and upgrades in your tender responses, especially where you subcontract to software vendors.
Intellectual property rights
Intellectual property rights are another area to watch (Art. 43). The CCAG-TIC sets out the ownership and use of intellectual property rights in IT contracts. Contractors must make sure they hold the rights needed to use any third-party intellectual property, and that any work developed during the project is properly protected. The concepts of background knowledge and results are clearly described, so background knowledge should be identified carefully from the tender response stage onwards (in an intellectual property annex, in particular).
Penalties
Penalties are obviously among the points to watch closely when drafting your tender response and assessing the risk in your bid, but also during performance of the contract (in case any are notified to you).
Which penalties does the CCAG-TIC provide for? Under Article 14, penalties can be of two kinds:
1. Liquidated damages for delay, which apply using the formula: P = V*R / 1000
2. Penalties for unavailability (in software in particular), which apply using the formula: P = (V*R) / 30
The CCAG-TIC also provides for minimum and maximum adjustments: the maximum amount is set at 10% of the value of the contract, of the relevant tranche or of the purchase order, and penalties are waived where their total amount is below €1,000.
Departures from the CCAG-TIC
We saw at the start of this article that the CCAG-TIC is optional, even if in practice it is applied by a large majority of public buyers.
The buyer may also amend the CCAG-TIC, in particular by adding new clauses or derogations in the CCAP (Cahier des Clauses Administratives Particulières, the special administrative clauses). Review clauses allowing for technological change are frequently found, as are technical audit clauses.
Termination of the contract
Articles 47 to 54 of the CCAG-TIC set out various grounds and procedures for terminating a public procurement contract. These include, of course, termination at the contract holder’s request, termination for the contract holder’s default and termination on public interest grounds.
While all these cases are clearly defined in the articles above, it is important to know that termination for the contract holder’s default must, save in exceptional cases, be preceded by a formal notice setting a deadline for performance.
The termination settlements (in particular the sums paid to the contract holder following termination) differ depending on whether termination follows the contract holder’s default (Art. 50), a ground linked to the contract (Art. 49) or a public interest ground (Art. 51).
Conclusion
Like many legal documents, the CCAG-TIC can look complex at first glance. A quick read, however, is enough to grasp its framework and requirements and, ultimately, to build a tender response that is relevant and well positioned on price.