DAJ activity report: what lessons for public procurement?

At the beginning of the summer, the Legal Affairs Department (DAJ) published its annual activity report. DAJ’s activities include. What can we learn from this activity report on public procurement? We propose to look at the content and the lessons to be learnt through 4 key themes.

1. Reciprocity in the opening up of EU public procurement markets

The first theme crowns 10 years of parliamentary work and a long legislative process at both national and European level. The IMPI regulation came into force in August 2022.

This regulation (a detailed description of which can be found on our partner’s website) aims to prevent discriminatory practices within European Union countries. In other words, for 1 year now, French companies have had a tool guaranteeing them fairer access to the markets of neighboring countries (and vice versa).

Sanctions are even provided for in the event of real or even proven discrimination, since the Commission can even launch an investigation on its own initiative.

This reciprocity is a strong sign of Europe’s determination to use public procurement as a lever for trade policy.

2. Dematerialization of public procurement

Supported by the DAJ and DAE (Direction des Achats de l’Etat), the digital transformation of the public procurement chain is underway! Activities scheduled for 2022 include the interoperability of the place platform with other platforms, the integration of modules for accessing, publishing and consulting numerous TNCP products and services, and the opening of the APProch sourcing portal.

This work has continued into 2023, with deadlines to meet as the new e-forms (see our article on the subject) will be mandatory from October, and the new essential data sets (DECP) will have to be implemented by January 1, 2024.

2022 was a year of interoperability, and 2023 and 2024 will be years of open data!

3. Support for companies in difficulty

2022 was also a good year for the “imprevision theory”. As a result of the Conseil d’Etat’s opinion of September 2022, followed by the Borne circular, the DAJ has had the opportunity to clarify that price modifications (financial clauses) can be revised during the course of a contract, in accordance with the French Public Order Code and European directives on public procurement.

To be concise, when unforeseeable circumstances make it necessary, financial and/or duration clauses can be justified, provided that the economic equilibrium of the contract is upset. Compensation may also be paid to public contract holders on the same basis, when the imbalance is temporary.

The DAJ has published a fairly detailed fact sheet (some twenty pages long) explaining the various options available for modifying financial clauses and/or contract duration in the event of unforeseeable circumstances.

Again against a backdrop of inflation and unstable geopolitical conditions, the DAJ was also asked to comment on the validity of price revision clauses. After recalling the cases in which these clauses are compulsory in public procurement contracts (exposure to major hazards, duration of more than 3 months for services including a significant proportion of supplies and materials, etc.), the conditions of validity (setting a reference date, calculation methods and periodicity of implementation) were recalled.

Finally, the DAJ has also intervened in measures to support SMEs in the construction and public works sector, with the extension of the exemption from advertising and competitive bidding for contracts under 100K, an increase in the minimum amount of advances, and clarifications concerning cost overruns on construction sites.

Extending exemptions, granting indemnities, modifying prices or even increasing the level of advances: numerous tools have been deployed to facilitate SME access to public procurement.

4. Responsible purchasing

Responsible purchasing is the DAJ’s last major area of action for 2022, and will undoubtedly remain so in 2023 and 2024, given the challenges and deadlines ahead.

Indeed, in mid-2022, the Council of the EU adopted conclusions prepared by the DAJ aimed at making European public procurement more sustainable. In particular, this means adopting common rules for public procurement (sustainable development considerations in the expression of need, award criteria and contract performance conditions). The texts resulting from these conclusions will have to be implemented by 2030, which is both far and near.

2022 also saw the publication of the decree implementing article 35 of the Climate and Resilience Act. In concrete terms, this decree introduces the obligation to take environmental criteria into account in procurement contracts, the obligation for a public procurement concessionaire to describe the measures implemented to guarantee environmental protection, and the lowering of the annual purchase threshold to €50M for a local authority to be obliged to set up a SPASER. The decree will come into force in 2026, although some measures, such as the immediate exclusion of operators who fail to submit a due diligence plan, are subject to this obligation.

2022 was a productive year in terms of laws, regulations and texts dedicated to the greening of public procurement. The period 2023-2030 will therefore be critical, as it will see the entry into force of these texts, which will give rise to new names in the public procurement landscape.