The Council Directive 89/665/EEC of 21 December 1989 on the coordination of the laws, regulations and administrative provisions relating to the application of review procedures to the award of public supply and public works contracts and the Council Directive 92/13/EEC of 25 February 1992 coordinating the laws, regulations and administrative provisions relating to the application of Community rules on the procurement procedures of entities operating in the water, energy, transport and telecommunications sectors has been implemented in France respectively by law n°92-10 of 4 January 1992, as subsequently amended, and by law n°93-1416 of 29 December 1993.

The Directive 2007/66/EC of the European Parliament and of the Council of 11 December 2007 amending Council Directives 89/665/EEC and 92/13/EEC with regard to improving the effectiveness of review procedures concerning the award of public contracts with EEA relevance has been implemented by Ordinance n°2009-515 of 7 May 2009.

Most of these provisions are codified under the relevant sections of French Administrative Justice Code.

Contractors may resort to settlement, conciliation, and arbitration under the specific conditions set below.

As regard conciliation, for contracts subject to the Ordinance no. 2015-899 and the Order no. 2016-360, contractors may submit any dispute to an advisory board (Comité consultatif de règlement amiable des différends ou des litiges). Such advisory board investigates elements of law or fact with a view to finding an amicable and equitable solution.

Besides, these contracts may refer to one of the Administrative General Terms and Conditions pursuant to which an amicable conciliation procedure before bringing an action before Administrative Courts is compulsory.

As regards arbitration, and as an exception to the principle set forth in Article 2060 of French Civil Code, local public authorities, local public bodies, some public bodies of industrial and commercial nature and the State (subject to prior authorisation by a specific decree in this case) may resort to arbitration for works and supply contracts.

Civil damage claims are available as regards private contracts, i.e. procurement contracts that are entered into by contracting authorities which are private entities.

The French « Comité consultatif de règlement amiable des différends ou des litiges » is made up of two judges from the Council of State (Conseil d'Etat) and the Cour des comptes (the supreme body for auditing the use of public funds in France), two representatives of the administration and two representatives of companies. In addition, a representative of the General Directorate for public finance has an advisory capacity.

Disputes relating to public procurement contracts are judged by the local competent Administrative Courts.

Disputes relating to private contracts are judged by the local competent District Courts (Tribunal de Grande Instance).

• "Référé précontractuel" (articles L. 551-1 and seq. of the French Administrative Justice Code), which is a summary proceeding that allows the complainant to seek, notably, the suspension of any decision relating to the tendering procedure in case of a failure by the contracting authority to fulfil its obligations of advertising and putting out to tender: it is possible to initiate this summary proceeding until the procurement contract is signed.
• "Référé contractuel" (articles L. 551-13 and seq. of the Administrative Justice Code), which is also a summary proceeding whereby the judge rules on the validity of the contract: it is admissible where the claimant has an interest to enter into the contract and is likely to be harmed by the contracting authority's failure to fulfil its obligations of advertising and putting out to tender: this summary proceeding can be initiated within a 31-day delay following the publication of a contract award notice in the Official Journal of the European Union or the notification of the conclusion of the contract if the latter is based on a framework agreement or a dynamic purchasing system. If no contract award notice has been published or the notification did not occur (while it is required under French law), the summary proceeding can be initiated within a six-month delay following the day after the conclusion of the contract.
• Regarding the "Tarn et Garonne" appeal, which is a proceeding on the merits allowing a competitor to question the validity of the contract: this proceeding on the merits can be initiated within a 2-month delay after the contracting authority carried out the appropriate publication requirements, notably the publication of a contract award notice.

The three appeals that can be brought before Administrative Courts have similar admissibility requirements.

When it comes to the "référé précontractuel" (article L. 551-1 and seq. of the French Administrative Justice Code), it is admissible where the claimant has an interest to enter into the contract and is likely to be harmed by the contracting authority's failure.

The same holds true as regards the "référé contractuel" (article L. 551-13 and seq. of the Administrative Justice Code)..

As regards the "Tarn et Garonne" appeal ("recours Tarn et Garonne" - CE Ass, 4 April 2014, "Département de Tarn-et-Garonne", no. 358994), it is admissible where the conclusion of the contract harms the claimant's interests in a sufficiently direct and certain way.

The admissible ground for starting the "référé précontractuel" and "référé contractuel" appeals is the contracting authority's failure to fulfil its obligations of advertising and putting out to tender or treating equally all candidates.

Admissible grounds for starting a "Tarn et Garonne" appeal differ according to who brings the claim. For example, an unsuccessful competitor who starts such an appeal must rely on the breaches of procurement procedure directly related to its eviction.

The "référé précontractuel" affects on-going tender procedures, whereas the "référé contractuel" and "Tarn et Garonne" appeals affect awarded contracts.

The "référé précontractuel" may have the following consequences on the tender procedure:

• The judge may order the contracting authority to comply with its obligations under procurement law;
• The judge may defer the execution of any decision relating to the tender procedure;

the judge may cancel the decisions relating to the tender procedure or annul contractual clauses violating procurement law. The "référé contractuel" may have the following consequences on the awarded contract:

• the judge may defer the performance of the contract;
• It may cancel the contract, pronounce its termination, shorten its duration or impose a penalty on the contracting authority (which cannot exceed 20% of the contract value) if:
  • the contracting authority failed to fulfil its obligations of advertising;
  • the contracting authority signed the contract during the standstill delay,
  • the contracting authority signed the contract between the referral to the Administrative Court and the date the judgement was passed, provided that two conditions are met: the signature prevented the claimant from bringing a claim, and the contracting authority's failure to fulfil its obligations of advertising and putting out to tender jeopardized the economic operator's chances to obtain the contract.

The "Tarn et Garonne" appeal may have the following consequences on the awarded contract:

• in light of the nature of defects affecting the validity of the contract, the judge may either decide that contract performance must keep going, or ask the parties to regularise these defects;
• If the contract is affected by defects that cannot be regularised and prevent contract performance, the judge may pronounce its termination;
• The judge may even cancel part or all of the contract if the defects affecting it are particularly serious or relate to the consent of parties;
• The judge may award damages in case the claimant's interests are harmed.

In case of a "référé précontractuel" appeal, judicial proceedings do not take longer than 20 days following the date the appeal was brought.

In case of a "référé contractuel" appeal, judicial proceedings do not take longer than a month following the date the appeal was brought.

In case of a "Tarn et Garonne" appeal, the duration of judicial proceedings may vary depending on the competent jurisdiction and the complexity of the case. However, it should last 18 months on average.

Pursuant to article 99 of Order no. 2016-360, unsuccessful bidders must be notified the rejection of their tender. In case the procedure relates to a contract the value of which exceeds the thresholds laid down in Directive 2014/24/EU, the contracting authority tells the unsuccessful bidder about the reasons why its tender has been rejected.

This notification may occur as soon as the contracting authority decided to reject the tender, but it may as well take place after the contract has been awarded. In this case, the contracting authority provides the unsuccessful bidder with additional information (i.e. the name of the operator who was awarded the contract and the reasons behind this choice), and the notification must take place at least eleven days before the contract is signed (or sixteen days if the notification was not sent by electronic means), as laid down in article 101 of Order no. 2016-360.

Review proceedings are rare: around 10% of procedures and contracts were challenged before Administrative Courts in 2013 (data: Council of State report for 2013; Public procurement economic observatory, census for 2013).

In addition, less "référé précontractuel" and "référé contractuel" appeals have been brought since 2008, given that admissibility requirements have been significantly toughened. Further, "Tarn et Garonne" appeals may not be really common in the future, since admissibility requirements are also quite strict.

Damage claims are only admissible within the framework of the "Tarn et Garonne" appeal. Since it has been created recently, there is no available data on damage claims yet.

There have been many court decisions involving procurement disputes in France, including those by the Supreme Administrative Court (Conseil d'Etat), which are followed by the lower Administrative Courts.

The following decisions can be pointed out: Conseil d'Etat, 3 October 2008, SMIRGEOMES (relating to summary proceedings before the signing of the procurement contract and considering that the only persons who show that they have sustained or are likely to sustain harm owing to breaches to publicity and opening to competition can lodge an application) and Conseil d'Etat, 16 July 2007, Société Tropic Travaux Signalisation (allowing the ousted competitors to dispute the validity of the contract or some of its clauses once it is signed).