Sign the undertaking in the event of the award of the contract

Verified 04 January 2024 - Directorate for Legal and Administrative Information (Prime Minister)

The public buyer chooses the most economically advantageous tender using criteria set in advance in the consultation documents. The undertaking is then signed by the successful candidate and the buyer. The contract is notified after a standstill period in the formalized procedures.

The public purchaser analyzes the offers in 2 successive steps:

  • Analyzes the applications to assess the candidates' ability to perform the contract.
  • Then analyze the offers to choose the most economically advantageous offer.
Examination of applications

The public purchaser normally begins by analyzing the applications deposited. This phase usually takes place before the bid review phase.

It shall check that applications have been received within time limits. Any application submitted out of time shall be eliminated.

It shall verify that the candidates comply with the conditions for participation indicated in the call for tender or in the consultation documents. This concerns the economic and financial capacity of the applicant, taking into account the potential capacity of co-contractors or subcontractors. Technical and professional capacities are assessed: staff, average level of education and professional qualifications, etc.

Finally, the buyer also checks that the candidates do not not subject to prohibition to apply.

Examination of tenders

The public buyer then examines the offers to choose the most economically advantageous one.

It shall evaluate the tenders received using the award criteria set out in the consultation regulation (CR). These criteria are freely chosen by the purchaser and allow the quality of the services expected to be provided to be assessed, as well as the procedures for performing the contract. While the use of a single criterion (price or cost) is possible in certain cases, the use of a plurality of criteria is always recommended in order to add value to other elements of the offer.

The buyer has the possibility to rely on a single criterion or on several criteria.

The single criterion is economical. These are:

  • Price : where the sole purpose of the contract is to purchase standardized services or supplies, the quality of which does not change from one supplier or service provider to another
  • Cost : based on the life cycle cost of a product, service or work. It covers all or part of the costs of acquisition, energy consumption, maintenance, recycling, etc.

When based on multiple criteria, the purchaser may provide, in addition to this economic criterion (price or cost), qualitative, environmental or social criteria. Examples of such criteria are:

  • Quality : technical merit, aesthetic or functional characteristics, accessibility, learning, production conditions, guaranteeing producers' fair remuneration, innovation or development of direct supplies of agricultural products
  • Time limits for completion : delivery conditions, after-sales service and technical assistance, security of supply
  • Organization, qualifications and experience of staff : the buyer may exclude from the procurement procedure a person who has not established vigilance plan when she had to

Regular, acceptable and appropriate offers are categorized in descending order using the award criteria chosen.

Once the bids are closed, the buyer applies a scoring method which need not be specified in consultation documents.

The criteria shall be weighted when the contract is awarded in accordance with a formalized procedure.

Please note

Irregular, unacceptable or inappropriate offers are automatically eliminated and cannot be closed.

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Adapted Procedure Contract (Mapa)

To award a public contract, the public purchaser must respect the following principles:

  • Choosing a relevant offer
  • Good use of public funds
  • Do not always contract with the same company when there are different offers that could meet the need

Beyond price, the decisive criteria for awarding a contract may be technical value, quality, supply conditions, lead times, social and environmental efforts.

Formal procedure contract

If the contract is awarded on the basis of formalized procedure, the criteria must be weighted or, if this is not possible, indicated in descending order of importance.

The weighting represents the importance that the buyer attaches to each criterion and indicates to the candidates which aspects they should focus on.

Thus, when the price criterion is weighted to 80%However, it is the amount of the offer that will mainly weigh on the choice. The lower the price of the offer, the more chance it will win. The weighting of the criteria may be expressed as a range with a maximum deviation.

In case of competitive dialog and for one innovation partnership, the most economically advantageous tender must be selected on the basis of several criteria.

FYI  

Where the buyer is a local authority, the examination of the tenders is normally carried out by the competent tendering commission.

A negotiation phase may take place after the first analysis of the tenders and before the award of the contract. It allows the buyer to evolve the candidate’s initial offering to be as close as possible to his or her need.

The consultation rules (CR) must specify that the market is open to negotiation. It specifies the modus operandi of the negotiation and the elements to which it may relate (time limit, price, quantity, etc.). Negotiation may also take place on the technical part (for example, for a contract for the purchase of a machine, the discussion may concern consumables, maintenance, etc.).

As a matter of principle, once negotiation is provided for, it applies to all candidates who have submitted an offer. It may cover all elements of the tender or be limited to one or more elements.

The negotiation can take place by email exchange via the buyer profile, or in meetings with the selected candidates.

It is possible under certain procedures formalized and Adapted Procedures Contracts (APMA).

Formal procedure contract

Negotiation is possible in the following markets:

  • Competitive Dialog which must enable the public person to determine with the candidates the technical, legal and/or financial solution most likely to meet his needs
  • Market without prior advertising or call for competition
  • Procedure with negotiation whose principle is to improve the content of successive offers by negotiation

The procedure with negotiation can only be implemented in one of the following 6 cases:

  • A need that cannot be met without adapting readily available solutions
  • Need for an innovative solution
  • Contract involving design services
  • Existence of special circumstances (linked to the nature of the contract, its complexity, the financial package)
  • Unable to define technical specifications
  • In the context of a call for tenders, only irregular or unacceptable tenders were submitted

Adapted Procedure Contract (Mapa)

Where the public contract is awarded within the framework of a Mapa, it is possible for the buyer to provide for a negotiation phase with the applicant companies before awarding the public contract. This negotiation phase must be mentioned in the consultation documents and/or in the notice of advertising of the public contract. It shall also indicate the criteria on which candidates will be selected to participate in the negotiation.

This is an option for the buyer and not an obligation. Even where the buyer has opened the possibility of negotiation, it retains the possibility of awarding the contract without the obligation to launch the negotiation.

Consultation may be open or restricted: the buyer may decide either to proceed with a preliminary selection phase of the applications and then send the consultation dossier to the candidates he has chosen (restricted procedure) or to request from candidates in a single phase all the documents relating to the application and the tender.

The tender with the highest ranking shall be accepted as valid temporary like most economically advantageous offer.

The public purchaser must verify the fiscal and social situation of the successful tenderer. It shall then require the candidate to whom the contract is to be awarded to produce the certificates and certificates within a fixed period. When the reply is submitted via the online Dume, the tenderer does not need to transmit these certificates when the information is already known to the authorities.

The successful candidate and the buyer must then to sign an undertaking.

FYI  

Buyers can ask successful candidates to conduct a fine-tuning of the components of the public contract before signing. It's just an adjustment of the offer to make slight changes. For example, fine-tuning may make it possible to adapt the timetable for performing the services or to replace certain materials.

What is the undertaking?

The act of commitment is the essential part of the public contract. It makes it possible to ascertain precisely the reciprocal commitments of the successful candidate and the buyer.

This document shall be filled in by the public purchaser at the time of the award of the public contract and then forwarded to the applicant company and/or to the temporary grouping of companies (GME) retained.

Unlike the application documents (DC1, DC2 or Dume) and the offer, the undertaking must be signed by both parties: the applicant and the public purchaser.

By signing it, the successful candidate commits to his offer of price and formally accepts the provisions of the contract.

Once the company and/or group has signed the undertaking, it shall return it to the public purchaser.

The latter must observe a standstill period before signing the contract in certain procedures.

FYI  

A model commitment document is offered to public purchasers through the website of the Ministry of Economy. This is the ATTRI form 1

This model is optional. The public purchaser may choose to draw up his own undertaking provided that all the mandatory and statutory particulars appear therein.

In which cases does the buyer have to meet the standstill deadline?

A time limit, known as a “standstill”, must absolutely be respected by the buyer before the public contract is signed.

This period shall apply only where the contract is awarded in accordance with formalized procedure. In this case, the buyer must wait at least 11 days between the date of dispatch of the notification and the date of signature of the contract by the buyer. This period shall be 16 days if the information has been sent by paper mail.

The standstill period does not apply in the following cases:

  • When the contract has been awarded in proceedings Mapa
  • Where the contract is awarded to the sole operator who participated in the consultation
  • For specific contracts based on a dynamic acquisition system (SAD)

How do I sign the undertaking?

The undertaking shall be signed by hand or electronically. An electronic signature is the equivalent of a handwritten signature for a dematerialized document. Both parties (buyer and contract holder) must use the same means Signature ID.

The signatory(s) must each have the power to engage the person they represent (individual candidate or member of the company grouping). In the case of a grouping of companies, the representative appointed by the grouping must sign. In the absence of a representative, all members of the grouping must sign.

The electronic signature is not required by regulation. However, the purchaser may decide to tax it within consultation documents.

To use the electronic signature, the company must satisfy several preconditions :

  • It must have acquired a signing certificate that is nominative and the corresponding software application that is often offered by the buyer profile. It ensures the identity of the signatory and the integrity of the electronic document, i.e. it cannot be changed once signed. The certificate shall be issued for a period of 1 to 3 years to a natural person and not to a company. It is usually in the form of a USB stick.
  • It must have specified its internal organization and designated the persons empowered to sign on its behalf: its holder must have the capacity to engage the business or have a delegation of power.

The e-signature certificate is paying. It is marketed by private providers specialized in qualified electronic certification. As it may take several days to obtain, the request must be anticipated in relation to the time limit for reply indicated in the contract notice.

FYI  

To obtain an e-signature certificate, you can refer to the list of qualified providers.

For contracts awarded under a formalized procedure, the public purchaser must publish a notice of award within a maximum of 30 days of signature of the contract.

Publication of an award notice shall be optional under the appropriate procedure.

This notice makes the choice of the offer selected by the buyer public. It shall be published in BOAMP: titleContent or in the Official Journal of the European Union (OJEU), depending on the market.

FYI  

Failure to publish a notice of award shall not lead to the illegality of the public contract.

The public buyer notify the contract to the holder after signature of the contract. In practice, this involves sending a copy of the signed contract to the contractor.

The texts do not impose no time limit for this notification of the contract.

For contracts equal to or greater than €40,000 HT, the notification to the successful candidate is made by electronic means either by the buyer profile messaging or by a tool which designates the sender, guarantees the identity of the recipient and establishes the date of delivery of the document.

The contract shall enter into force in principle on the date of receipt of the notification to the successful candidate unless the public contract provides for other arrangements.

Please note

Since 1er January 2024, for public contracts exceeding €40,000 HT, the buyer must publish in the 2 months of contract notification to the holder, the " essential data of the public contract.

This publication can be made either on the buyer profile or directly on the national open data portal (data.gouv.fr).

Where the amount of the contract is equal to or greater than €25,000 and less than €40,000 HT, the purchaser may choose to publish in the first quarter of each year, in the medium of his choice, the list of contracts concluded the previous year (amount, date of conclusion of the contract, name of the successful tenderer and his postal code).

This publication can be made either on the buyer profile or directly on the national open data portal (data.gouv.fr).

Where the amount of the contract is equal to or greater than €25,000 and less than €40,000 HT, the purchaser may choose to publish in the first quarter of each year, in the medium of his choice, the list of contracts concluded the previous year (amount, date of conclusion of the contract, name of the successful tenderer and his postal code).

This publication can be made either on the buyer profile or directly on the national open data portal (data.gouv.fr).

Where the amount of the contract is equal to or greater than €25,000 and less than €40,000 HT, the purchaser may choose to publish in the first quarter of each year, in the medium of his choice, the list of contracts concluded the previous year (amount, date of conclusion of the contract, name of the successful tenderer and his postal code).