Article 51 of Ordinance 2015-899, that implements article 58 of Directive 2014/24/EU, states that selection criteria may relate to suitability to pursue the professional activity, economic and financial standing and technical and professional ability. The criteria set by contracting authorities are related and proportioned to the contract performance conditions and object.

Pursuant to article 46 of Order no. 2016-360, prequalification is an option for contracts entered into by contracting authorities listed in article 11 of Ordinance no. 2015-899 (ie. contracting authorities and public companies executing network activities, as well as private entities operating on the basis of special or exclusive rights for network activities).

Prequalification enables these contracting authorities to preselect candidates deemed to be qualified for performing certain types of works, supplies or services.

Article 46 sets up the procedural requirements for the creation and functioning of prequalification systems.

Contracting authorities mentioned above publish a prequalification system notice, mentioning its existence, object, duration and access requirements.

Contracting authorities set objective rules and criteria of exclusion or selection of economic operators who seek to be prequalified. They also set objectives rules and criteria of functioning regarding registration to the prequalification system, periodic update of qualifications and duration of the system.

The prequalification system may consist of different rounds of prequalification.

Contracting authorities ensure that economic operators are able to apply for prequalification whenever they want. The rules and criteria for prequalification are communicated to economic operators who request them.

Pursuant to article 100 of Order no. 2016-360, applicants are told about the decision of the contracting authority within four months following the reception of their application. Unsuccessful applicants are told about the reasons behind the refusal within 15 days following the date of the decision.

Contracting authorities draw up a list of prequalified operators.

They can strike off prequalified economic operators only on the basis of the rules and criteria for prequalification mentioned above.

Articles 45 and seq. of Ordinance no. 2015-899 implement article 57 of Directive 2024/24/EU and list exclusion grounds from procurement procedures.

Economic operators are excluded when they have been convicted by final judgement for one of the criminal offences listed in article 45(1). The same holds true when the person who has been convicted is a member of the administrative, management or supervisory body of the economic operator. Article 45 also refers to breaches of the economic operator's obligations relating to the payment of taxes or social security contributions, bankruptcy, insolvency or winding-up proceedings, and breaches of labour regulations.

Article 45 also lists the conditions whereby economic operators may unlist. Economic operators must prove the following:

• as regards breaches of their obligations relating to the payment of taxes or social security regulations, they must prove they fulfilled their obligations by paying or entering into a binding arrangement with the tax administration, or provided sufficient guarantees;
• as regards other exclusionary grounds (except criminal offences listed in article 45(1), bankruptcy, insolvency and winding-up proceedings), they must prove that they were not sentenced to exclusion from procurement procedures, they paid or undertook to pay compensation in respect of any damage caused, collaborated with the investigating authorities and took concrete measures that are appropriate to prevent further criminal offence or misconduct.

According to article 48 of Ordinance no. 2015-899, the involvement of a company in the set-up of a procurement procedure is an optional ground for exclusion.

It may be the case where the company had access to information likely to distort competition among candidates and it is impossible to solve the situation by other means (such as providing all the candidates with the same information).

Pursuant to article 46 of Order no. 2016-360 that implements article 19 2. of Directive 2014/24/EU, companies may submit their application or bid as a several group or a joint group. Groups cannot be required by contracting authorities to have a specific legal form in order to submit a tender or a request to participate to the procurement procedure. However, contracting authorities may require groups to assume a specific legal form once they have been awarded the contract, provided that such a change is necessary for the satisfactory performance of the contract. Groups are represented by a lead company who acts as a proxy and coordinates the works, supplies or services of its members. Applications and tenders are submitted either by all group members or the lead company.

Groups of competitors on the same market may qualify as an anticompetitive agreement within the meaning of article 101 of the TFEU in certain circumstances. This may be the case where the very creation of the group has the object or effect to restrict competition. Competition authorities assess the intention of group members in light of different criteria:

• whether creating a group was needed to satisfy the contracting authority's needs;
• the wish of the contracting authority to award the contract to a group;
• the need for technical complementarity.

Pursuant to article 45 of Order no. 2016-360, members of a group of economic operators cannot change between the date the application was sent and that of the signature of the procurement contract.

However, article 45 provides for some exceptions. The group can request the change of a member in the following circumstances:

• One of the members cannot perform its task for reasons outside of its control;
• in case of corporate restructuring (merger or acquisition).

The group submits one or several potential alternative members, subcontractors or related bidders, for the contracting authority approval, who will assess the capacities of the whole transformed group as well as that of the alternative member, subcontractor or related bidder on an individual basis.

In addition, article 50 of Ordinance no. 2015-899 provides that the contracting authority asks for the replacement of the member affected by a ground for exclusion of the procurement procedure within ten days.

Procurement rules do not limit participation of related bidders in the same procurement procedure.

However, competition law may limit such a simultaneous participation. The coordination of the related bidders' tenders may amount to an anticompetitive agreement within the meaning of article 101 of the TFEU. Related bidders must prove that they did not exchange information and bring evidence of their respective decision-making autonomy.

A foreign company may be required to translate the following documents on request of the contracting authority:

• the declaration that the operator is not affected by a ground for exclusion of procurement procedures, documents requested by the contracting authority in order to prove the operator's suitability to pursue the professional activity, economic and financial standing and technical and professional ability, documents relating to the several responsibility of other entities whose capacities are relied on by the economic operator (article 48 of Order no. 2016-360)the European single procurement document (article 49 of Order no. 2016-360)
• documents justifying that the foreign company satisfies the participation requirements relating to the procedure. When the company intends to rely on the capacities of other entities, it may have to provide the translation of documents justifying these entities' capacities as well as those proving that the foreign company will have theses capacities at its disposal (article 50 of Order no. 2016-360)
• Documents listed in article 51 of Order no. 2016-360: an extract from the candidate's police records, certificates proving that the foreign company is not affected by a ground for exclusion of procurement procedures, documents justifying that the company is not in breach of its obligations concerning the payment of taxes or social security contributions, documents proving that the foreign company does not face bankruptcy, insolvency or winding-up proceedings and complies with labour regulations.
• documents relating to the company's tender (article 57 of Order no. 2016-360).