France: More restrictive public procurement rules for construction work tenders
According to the Décret no 2008-1355, issued on 19 December 2008, relating to the implementation of the French stimulus plan, with respect to public procurement, the maximum threshold for the value of a construction project where an awarding authority can follow a loose public procurement procedure (‘procédure adaptée’) was increased from EUR 206’000 plus state sales tax to EUR 5’150’000 plus state sales tax. The EUR 5’150’000 plus state sales tax limit corresponds to the maximum threshold allowed by the EU.
The modalities of a ‘procédure adaptée’ can be freely fixed by the awarding authority. The modalities to be chosen include: the nature and features of the specifications required, the number and origins of the potential economic operators that can respond to the authority, and the circumstances of the purchase.
Moreover, Décret no 2008-1355 allows the awarding authority to negotiate - mainly with respect to prices - with those bidders that present an offer.
Finally, the awarding authority can decide that the project does not go through a open tendering procedure if the circumstances justify it or the maximum expected value of the project is below EUR 20’000 plus state sales tax. This amount was increased in Décret no 2008-1355 from previously EUR 4’000 plus state sales tax.
Investigating the official French public procurement database ‘Bulletin officiel des annonces des marchés publics’, it can be viewed that 118 out of 197 new construction tenders in 2009 follow the ‘procédure adaptée’.
Although these amendments are likely to comply with EU law, the higher thresholds allow more French stimulus spending to fall outside EU procurement rules designed to open up public contracts to international competition.
Any Evidence-Based Deliberation:
|Is there anything in the public record to suggest that evidence of the effectiveness of the proposed measure was considered during official deliberations?||No|
|Is there any evidence that alternatives to the proposed measure were considered?||No|
|Is there anything in the public record that suggests that empirical evidence informed the comparison across the alternatives available to government?||No|
|Was such evidence identified?||No|
|Is such evidence publicly available?||No|
|Did the official decision-maker in question provide an explanation as to why a chosen measure was favoured over alternatives?||No|
|Is there any evidence to suggest that potentially affected trading partners were consulted before the measures were taken?||No|
|Is there any evidence that safeguards have been put in place to ensure that implementation of the initiative is transparent and non-discriminatory?||No|
|Did the government state its intention to review the measure within one year of implementation?||No|
Date of inception: 19 Dec 2008
GTA Evaluation: Red
1) Code des marchés publics, édition 2006 (http://www.legifrance.gouv.fr/affichCode.do;jsessionid=196DC7B636E3D4AD8...)
2) Décret n° 2008-1355 du 19 décembre 2008 (http://www.relance.gouv.fr/-Decrets-.html)
3) Bulletin officiel des annonces des marchés publics (http://www.boamp.fr/index.php?action=afficherFormRechSimple)