At the start of the summer, the Direction des Affaires Juridiques (the DAJ, the French Legal Affairs Directorate) published its annual activity report. The DAJ's activities include. What should we take away from this activity report as regards public procurement contracts? We propose to look at its content, and the lessons to be drawn from it, through four key themes.
1. Reciprocity in opening up European Union public procurement
The first theme crowns 10 years of parliamentary work and a long legislative process at national and European level alike. The regulation known as "IMPI" came into force in August 2022.
This regulation (a detailed description of which you will find on our partner's website) aims to prevent discriminatory practices within European Union countries. In other words, for the past year French companies have had a tool guaranteeing them fairer access to the procurement markets of neighbouring countries (and vice versa).
Penalties are even provided for in cases of real and established discrimination, since the Commission can launch an investigation on its own initiative.
This reciprocity is a strong marker of a European desire to use public procurement as a trade policy lever.
2. Digitising public procurement
Backed by the DAJ and the DAE (the State Purchasing Directorate), the programme to digitally transform the public procurement chain is under way! The work carried out in 2022 includes making the PLACE platform interoperable with other platforms, adding modules to access, publish and consult numerous TNCP products and services, and opening the APProch sourcing portal.
This work continued in 2023, with deadlines to meet: the new e-form notices (see our article on the subject) become mandatory from October, and the new essential procurement data sets (DECP) must be implemented by 1 January 2024.
2022 was a year defined by interoperability; 2023 and 2024 will be years of open data!
3. Support for companies in difficulty
2022 was also a year that lent itself to adjustments flowing from the doctrine of "imprévision" (unforeseeable circumstances). Following the opinion of the Conseil d'État of September 2022 and the Borne circular, the DAJ had occasion to clarify that price changes (financial clauses) may be revised during the life of a contract in accordance with the French Public Procurement Code and the European public procurement directives.
In short, where unforeseeable circumstances require it, the financial and/or duration clauses can be justified provided the economic balance of the contract has been upset. Compensation may also be paid to the holders of public procurement contracts on that same basis, where the imbalance is temporary.
The DAJ has published a fairly detailed technical note (some twenty pages, no less) explaining the various options available for amending the financial clauses and/or the duration of contracts in the event of unforeseeable circumstances.
Still against a backdrop of inflation and an unstable geopolitical context, the DAJ was also asked about the conditions for the validity of price revision clauses. After recalling the cases in which such clauses are mandatory in public procurement contracts (exposure to major uncertainty, a duration of more than 3 months for services including a significant share of supplies and materials, etc.), it restated the conditions for their validity (setting a reference date, calculation methods and how often they are applied).
Finally, the DAJ also stepped in on measures to support very small and medium-sized construction businesses, with the extension of the exemption from advertising and competitive tendering for contracts below €100k, a rise in the minimum level of advance payments, and clarifications on cost overruns on sites.
Extended exemptions, compensation, price changes and higher advance payments: many tools have been deployed to make public procurement more accessible to SMEs.
4. Responsible procurement
Responsible procurement is the last major strand of the DAJ's work for 2022, and there is little doubt it will remain so through 2023 and 2024, given the issues and deadlines ahead.
As early as mid-2022, the EU Council adopted conclusions prepared by the DAJ aimed at making European public procurement more sustainable. This runs in particular through the adoption of common public procurement rules (sustainability considerations when setting out the requirement, in the award criteria and in the contract performance conditions). The texts flowing from those conclusions must become applicable by 2030, which is both distant and close at the same time.
2022 was also the year the decree implementing Article 35 of the French Climate and Resilience Act was published. In practical terms, this decree introduced the obligation to take environmental criteria into account in contracts, the obligation for the holder of a public concession contract to describe the measures put in place to protect the environment, and the lowering of the threshold to €50m of annual purchases for a local authority to be required to adopt a SPASER (responsible public procurement scheme). The decree will come into force in 2026, even if some measures such as the immediate exclusion of operators that fail to produce a duty-of-vigilance plan when they are subject to that obligation.
2022 was a productive year for laws, regulations and texts dedicated to greening public procurement. The 2023-2030 period will therefore be critical, as it will see these texts come into force, which will allow new names to emerge in the public procurement landscape.
