The CCAG TIC, or Cahier des Clauses Administratives Générales pour les marchés de technologies de l’information et de la communication, is a framework governing the procurement of IT goods and services by the French administration. As a contractor, it’s important to be aware of the points to watch out for when using the ICT GCC to ensure the success of your project.
What is the CCAG-TIC?
Before addressing the points to watch out for, it is essential to understand the CCAG-TIC. This document, amended in 2021 (the previous revision dated from 2009), functions as general purchasing conditions and can be applied to a public information and communication technology (ICT) contract.
The CCAG-TIC describe the terms and conditions that apply to ICT-related public procurement contracts (software, IT development, application maintenance, etc.). It covers a wide range of aspects, including intellectual property rights, data protection and performance monitoring.
CCAG-TIC: points of attention
Duty to advise
The obligation to warn and advise is one of the main new features of this 2021 version of the CCAG-TIC (Art. 3.9). Although it may seem harmless, this new “permanent obligation to advise and warn” requires the contract holder to have an overall view and expertise of the IS, in order to warn of potential difficulties, security issues and other delays that may arise.
Software updates and versioning
Another important change introduced in the 2021 vintage of the CCAG-TIC is that of software updates and new versions (Art. 22). Indeed, unless otherwise stipulated, contracts for the supply of software (off-the-shelf or customized) by default include the delivery of software updates and new versions.
So be sure to factor in the impact (especially the financial impact) of these software updates and upgrades when responding to invitations to tender, especially when subcontracting to software publishers.
Intellectual property rights
Intellectual property rights are another area of vigilance (Art. 43). The CCAG-TIC describes the ownership and use of intellectual property rights in IT contracts. Contractors must ensure that they have the necessary rights to use third-party intellectual property, and that any work developed during the project is appropriately protected. The notions of prior knowledge and results are thus well described, and it is therefore advisable to identify this prior knowledge as early as the response to the call for tenders (notably in an intellectual property appendix).
Penalties
Penalties are obviously one of the points you need to keep a close eye on when drafting your response to a call for tenders, when carrying out a risk analysis of the bid, but also during the performance of the contract (should you be notified).
What are the penalties in the CCAG-TIC? According to Article 14, penalties can be of two kinds:
1. Penalties for late delivery, based on the formula: P = V*R / 1000
2. Penalties for unavailability (particularly for software), which apply according to the formula: P = (V*R) / 30
The CCAG-TICs also make provision for minimum and maximum amounts, since the maximum amount is set at 10% of the amount of the contract, the tranche concerned or the purchase order, and since penalties are waived when their total amount is less than €1,000.
Deviations from the CCAG-TIC
As we saw at the start of this article, these CCAG-TIC are optional, even if in practice they are applied by the vast majority of public purchasers.
However, it is also possible for the purchaser to modify these CCAG-TIC, in particular by adding new clauses or derogations in the CCAP (Cahier des Clauses Administratives Particulières). In particular, we frequently find review clauses to allow for technological developments, as well as technical audit clauses.
Termination of contract
Articles 47 to 54 of the CCAG-TIC set out the various grounds and procedures for terminating a public contract. These include, of course, termination at the holder’s request, termination for the holder’s own fault, and termination for reasons of public interest.
While all these cases are well defined in the aforementioned articles, it is important to know that termination for fault on the part of the contractor must – barring exceptions – be preceded by a formal notice with a deadline for performance.
Termination settlements (in particular the sums paid to the contractor following termination) are different, depending on whether the termination is due to the contractor’s fault (Art. 50), a reason related to the contract (Art. 49) or a reason of general interest (Art. 51).
Conclusion
Like many legal documents, the ICT GCC can be complex at first glance. However, a quick read will help you understand the framework and requirements, and ultimately build a relevant and well-positioned response to the call for tenders.
