Under article 10 of Ordinance n° 2016-360, all legal entities governed by public law are subject to public procurement rules. The State, its public bodies other than those of an industrial and commercial nature (such as SNCF, RATP, Société du Grand Paris…), local authorities and their public bodies fall within this category.

Pursuant to article 2 of Order no. 2016-360, other public entities such as the Banque de France, the Caisse des dépôts et consignations and Pôle Emploi (the governmental agency registering unemployed workers) are also covered by procurement rules.

The "UGAP" (Central Public Purchasing Office – Union des groupements d'achats publics) is also subject to public procurement rules, since it is a central purchasing body under article 26 of Ordinance no. 2015-899.

The following private entities are subject to procurement rules, as laid down in articles 10 and 11 of Order no. 2016-360:

• private entities created for the specific purpose of meeting needs in the general interest, not having an industrial or commercial character and either (i) mainly financed by public entities, (ii) subject to management supervision by those bodies, or (iii) having an administrative, managerial or supervisory board, more than half of whose members are appointed by those bodies;
• private entities created for the specific purpose of executing joint activities by contracting authorities covered by article 10 of Ordinance no. 2016-360 (namely, legal entities governed by public law or above-mentioned private entities);
• contracting authorities listed in article 10 of Ordinance no. 2016-360 or public companies as defined in article 11 of this Ordinance executing network activities listed in article 12 of this Ordinance, related to gas, heat, electricity, water, transport services, postal services, exploration for, or extraction of, oil, gas, coal or other solid fuels, as well as ports and airports; and
• private entities operating on the basis of special or exclusive rights for the activities listed above.

For example, Electricité de France (EDF), Société Nationale des Chemins de Fer (SNCF), Aéroports de Paris (ADP) and La Poste may be subject to Ordinance no. 2016-360.

Article 17 of Order no. 2016-360, which implements article 12 of Directive 2014/24/EU, states that co-operations between public entities are exempted from public procurement rules if certain criteria are met.

Notably, procurement rules do not apply where public contracts are awarded by contracting authorities to "in-house" entities, i.e. entities (i) predominantly controlled by the contracting authority; (ii) who carry out part of their activities for the controlling contracting authority; (iii) who are free from any direct private capital participation.

In addition, procurement rules do not apply to co-operation contracts concluded by contracting authorities and concerning the provision of public services governed solely by considerations relating to the public interest.

All contracts and framework agreements for pecuniary interest concluded in writing between one or more economic operators and one or more contracting authorities listed above and having as their object the execution of works, the supply of products or the provision of services are covered by procurement rules. So are design contests.

Article 139 of Ordinance no. 2016-360, which implements article 72 of Directive 2014/24/EU, lists six cases in which contracts and framework agreements may be modified without a new procurement procedure:

• where the initial procurement documents provide for precise and unequivocal review clauses that enable modifications (irrespective of their monetary value) and set the conditions under which these modifications may take place;
• where unexpected additional works, services or supplies have become necessary, provided that: (i) a change of contractor is impossible for economic or technical reasons (ii) and would either cause significant inconvenience for the contracting authority or lead to significant increase in its costs. In this case, the modification shall not exceed 50% of the value of the original contract;
• where the modification becomes necessary due to circumstances that a diligent contracting authority could not foresee. In this case, the modification shall not exceed 50% of the value of the original contract;
• where a new contractor replaces the initial one, as a consequence of: (i) a review clause or option, (ii) succession into the position of the initial contractor of another operator following corporate restructuring, provided that this transaction does not lead to substantial modifications to the contract and is not aimed at circumventing procurement rules;
• Where modifications are not substantial. Article 139 lists a range of cases in which modifications are substantial: the modification changes the economic balance of the contract in a way that was not provided for in its initial version, it introduces conditions which, had they been part of the initial procurement procedure, would have enabled the admission of other candidates, the acceptance of another tender, or attracted additional participants, etc.;
• where the amount of the modification is lower than the threshold values laid down in article 72 of Directive 2014/24/EU (see question 3. a.). In this case, it does not matter whether or not the modification is considered as substantial under article 139.

Article 4 of Ordinance no. 2015-899 and articles 78-80 of Order no. 2016-360, that implement article 33 of Directive 2014/24/EU, set the applicable legal regime for framework agreements.

Framework agreements are concluded between one or more contracting authorities and one or more economic operators. They set the terms governing contracts to be awarded during the duration of the framework agreement. Framework agreements may (or may not) set a minimum and/or maximum value or quantity of works, supplies or services to be provided or performed by economic operators. The duration of framework agreements cannot exceed four years when awarded to contracting authorities listed by article 10 of Ordinance n° 2015-899, or eight years when awarded to contracting authorities listed by article 11 of Ordinance n° 2015-899, save in exceptional cases duly justified.

Where framework agreements set all the contractual terms governing the provision of works, supplies and services concerned, contracts are awarded without reopening competition (article 80 of Order no. 2016-360).

Where framework agreements do no set all the contractual terms, contracts are awarded through reopening competition amongst economic operators parties to the framework agreement, under the conditions laid down in article 79 of Order no. 2016-360. However, contracts may be awarded without reopening competition where only one economic operator is able to perform or provide the works, supplies or services concerned for technical reasons. Where framework agreements that do not set all the contractual terms have been awarded to a single economic operator, contracts are awarded to this operator following the conditions set by the framework agreement. In this case, the economic operator may be asked to supplement its tender if necessary.

The applicable regime for public-private partnerships (PPPs) is laid down in articles 67 and seq. of Ordinance no. 2015-899 and articles 143 and seq. of Order no. 2016-360. Under French law, PPPs are now considered as a special type of procurement contracts.

The object of a PPP is to entrust one or more economic operators with a global mission consisting of the construction, adaptation, renovation or demolition of buildings, equipments or immaterial goods that are necessary to public services or the exercise of a mission in the general interest, as well as part or all of their financing (article 67 of Ordinance no. 2015-899).

The conditions for entering into PPPs are strict.

First, although all contracting authorities are entitled to enter into PPPs, some of them cannot do it on their own and are considered as non-authorised contracting authorities (article 71 of Ordinance no. 2015-899). This is the case for health public bodies and sanitary cooperative structures having the status of legal entities governed by public law, as well as central public administrations listed by Order dated 27 July 2016 (notably, regional health agencies, universities and other higher education public bodies, some museums and independent administrative authorities). However, the State can enter into PPPs on behalf of non-authorised contracting authorities (article 72 of Ordinance no. 2015-899).

Second, the value of the contract must exceed the following thresholds (article 151 of Order no. 2016-360):

• 2 million euros (excluding tax) where the object of the contract is about immaterial goods, information systems or equipment other than construction works/buildings, as well as for contracts providing for energy performance quantified goals and making the economic operator's payment subject to the achievement of these goals;
• 5 million euros (excluding tax) where the main object of the contract is about (i) network infrastructures (notably in the field of energy, transports, urban planning and sanitation) or (ii) construction works/buildings, provided that the scope of the mission entrusted to the economic operator does not include the fitting out, maintenance, renovation, management and operation of construction works, as well as the management of a public service mission or the provision of services contributing to the execution of a public service mission entrusted to a public entity;
• 10 million euros (excluding tax) where the main object of the contract is about construction works or the provision of services other than those mentioned above.

Third, the contracting authority must demonstrate that resorting to a PPP is more profitable (notably, financially attractive) than other ways to carry out the project in light of the characteristics of the latter, public services requirements, the mission in the general interest that is entrusted to the contracting authority, and deficiencies or difficulties that were brought about by the execution of similar projects (article 75 of Ordinance no. 2015-899). The contracting authority has to perform an evaluation comparing the different possibilities to carry out the project and analysing their respective cost, as well as an assessment of budgetary sustainability. The evaluation and the assessment are submitted to the administration for opinion (article 74 of Ordinance no. 2015-899).

PPPs can be awarded following the procedures applicable to procurement contracts, provided that the thresholds set by Directive 2014/24/EU are complied with.

The launching of the procedure is subject to prior approval of specific authorities (article 77 of Ordinance no. 2015-899 and article 155 of Order no. 2016-360):

• if the contracting authority is the State (either for itself or on behalf of a non-authorised contracting authority), the launching of the procedure must be approved by the Ministers for Budget and Economics;
• if the contracting authority is a State's public body, a local authority or one of its public bodies, the launching must be approved by the deliberative assembly or body;
• for every other contracting authorities, the launching of the procedure must be approved by the decision-making body.

The signature of PPPs is also subject to prior approval of specific authorities (article 78 of Ordinance no. 2015-899 and article 156 of Order no. 2016-360):

• if the contracting authority is the State (for itself or on behalf of a non-authorised contracting authority), the signature of the PPP must be approved by the Ministers for Budget and Economics;
• if the contracting authority is a State's public body, the signature of the PPP must be approved by the Ministers for Budget and Economics, as well as the Minister responsible for the State's public body;
• if the contracting authority is a local authority or one of its public bodies, the signature must be approved by the deliberative assembly or body;
• for every other contracting authorities, the signature must be approved by the decision-making body.

PPPs entered into by the State on behalf of non-authorised contracting authorities are signed by the Minister responsible for these non-authorised contracting authorities. Following the signature, they take on all the rights and duties arising from the PPP (article 157 of Order no. 2016-360).

According to procurement rules, PPP contracts must include some mandatory clauses, such as that determining how risks are shared between the contracting authority and the economic operator (article 70 of Ordinance no. 2015-899).

Directive 2014/23/EU of 26 February 2014 sets up a new legal framework applicable to the award of concession contracts. Ordinance no. 2016-65 dated 29 January 2016 and Order no. 2016-86 dated 1^st February 2016 implement the Directive into French law.

Some provisions of the legal framework applicable to concessions are identical to general procurement provisions. This is the case for the provisions defining contracting authorities (see questions 2. a. and b.), those regarding co-operation between public bodies (see question 2. c.), as well as those concerning changes to an existing contract (see question 2. e.).

Other provisions differ significantly from the general procurement framework.

The duration of concession contracts is limited and depends on the nature and amount of works, services and investments requested from the concessionaire. For concession contracts lasting more than five years, the duration of the agreement must not exceed the time that the concessionaire could reasonably be expected to take to recoup its investments together with a return on invested capital, taking into account the investments required to achieve the specific contractual objectives (articles 34 of Ordinance no. 2016-65 and 6 of Order no. 2016-86).

Although all awarding procedures must comply with the principles of freedom of access to procurement, equal treatment of all economic operators and procedural transparency, the regime applicable to concession contracts depends on the estimated contract value as well as their object (articles 9 and 10 of Order no. 2016-86):

• Contracts the value of which is equal to or greater than the threshold set by Directive 2014/23/EU (ie. 5 225 000 euros) are subject to the formalised awarding procedure laid down in the Directive and implemented into French law;
• Contracts the value of which is lower than the above-mentioned threshold are subject to a simplified awarding procedure. This is also the case for contracts the object of which is about drinking water, waste water draining out and treatment, irrigation and draining out engineering, exploiting public transport services, social services and other specific services listed in a Notice dated 27 March 2016, regardless of their value.

The simplified procedure gives more leeway to contracting authorities as regards some procedural steps than the formalised procedure. For example, there are no compulsory time limits for receipt of applications and tenders in the context of the simplified procedure. When fixing such time limits, contracting authorities must take into account the nature, value and characteristics of works or services that are requested from the concessionaire (article 18 of Order no. 2016-86).

Additionally, some procedural requirements are more flexible in the context of the simplified procedure. Award criteria do not have to be listed in descending order of importance: they only have to be mentioned in the concession notice (article 27 of Order no. 2016-86). Further, procedural requirements regarding concession award notices are more flexible: only candidates and bidders who request it are told about the grounds for any decision to reject their application or tender and the name of the successful tenderer, within 15 days from receipt of the written request (article 31 of Order no. 2016-86). Finally, procedural requirements as regards publication of concession notices and concession award notices are less burdensome, since publication in the Official Journal of the European Union is not automatic (articles 15, 16 and 32 of Order 2016-86).

Contracting authorities or their representatives may be convicted for criminal offences in the event of a breach of procurement rules.

The French Criminal Code provides for several offences against the government committed by civil servants such as passive corruption and trafficking of influence by a person holding public office, unlawful taking of interest or offences against equal access in respect of public tenders.

The management of the companies, as well as the companies themselves, benefiting from such favourable treatment, could also be exposed to sanctions on the ground of complicity or of the concealment of such offences.

Besides, the contract must not place the contractor in a situation of breach of competition law. Otherwise, the decision awarding the contract could be annulled by administrative courts.