What are the different procurement procedures?

Verified 15 December 2023 - Legal and Administrative Information Directorate (Prime Minister)

There are different types of public procurement procedures: procedure without prior publication or call for competition, adapted procedure contract (Mapa), formalized procedures. A temporary procedure for awarding public works contracts without prior publication has been introduced following the urban violence.

Contracts awarded without prior publication or call for competition shall be ‘small-value’ contracts or contracts relating to specific areas.

Contracts awarded without prior publication or call for competition may give rise to a negotiation which is conducted in accordance with the principle of equal treatment of all tenderers.

In the absence of advertising and competitive tendering, the public purchaser must always comply with the following public procurement principles:

  • Choice of a relevant offer and consistent with the need
  • Respect for the principle of good use of public funds
  • Do not systematically call on the same provider when there are different offers that can meet the need (in practice, the public purchaser must base his choice on 3 different quotes)

‘Low-value’ contracts

‘Low-value’ contracts are:

  • Supply or service contracts satisfying a requirement the amount of which is less than €40,000 HT: titleContent. This also applies to lots less than €40,000 HT: titleContent and whose aggregate amount does not exceed 20% the total estimated value of all lots.
    There is a specificity for retail markets supplies of non-school books. Purchasers may enter into this type of contract, for their own needs or for the enrichment of the collections of libraries hosting the public, the value of which is less than €90,000 HT: titleContent.
  • Works contracts satisfying a requirement whose estimated value is less than €100,000 HT: titleContent. This threshold applies until 31 december 2024 included. Lots which involve work of a lower value €100,000 HT: titleContent shall not exceed 20% the total estimated value of all lots.

Contracts concerning specific areas

The specific areas concerned are:

  • Innovative works, supplies or services satisfying a requirement whose estimated value is less than €100,000 HT: titleContent. An innovative market is a product or process technological innovation or an organizational innovation linked to digitization. The lots less than €80,000 HT: titleContent for innovative supplies or services or to €100,000 HT: titleContent for work innovators are also concerned.
  • Contract awarded in the absence of an admissible application submitted on time (no tender, inadmissible tender, inappropriate tender)
  • Works, supplies or services which may be supplied only by a single fixed company. This concerns the acquisition of a work of art, the supplementary supply or the like by the original supplier
  • Purchase of supplies or services in particularly advantageous conditions with the company in permanent cessation of activity or in judicial redress or in safeguard proceedings
  • Contract for services with one or more winners of a competition
  • Performing similar services to those entrusted to the holder of a previous contract awarded after competitive tendering
  • Purchase of products manufactured for the purpose of research, experimentation, study or development

Contracts awarded without prior publication or call for competition may give rise to a negotiation which is conducted in accordance with the principle of equal treatment of all candidates.

Procedure without prior publication or call for competition in cases of urgent need

In cases of urgent need, the public purchaser shall be exempt from the formalities of advertising and competitive tendering.

Urgency is imperative when the following 3 conditions are met:

  • Existence of a unforeseeable event (storm Xynthia in 2019, flood or earthquake)
  • Incompatible emergency with the time limits required by other procedures
  • Link From causality between the unforeseeable event and the resulting urgency

Imperative urgency is limited to external, unpredictable and irresistible events (e.g. natural disasters, floods or earthquakes). These situations warrant immediate action. Buyers may, for example, enter into negotiated contracts without advertising or competitive tendering to repair badly damaged roads, consolidate structures threatening to collapse, undertake relief measures for those affected (temporary accommodation solutions, food distribution, etc.) or restore the functioning of networks.

Works contracts which are urgently required may be awarded without advertising or calling for competition in the following cases:

  • Existence of an imminent point danger to public health
  • Use of premises or installations endangers the health or safety of their occupants
  • Imminent danger to health or safety of occupants due to unsanitary building conditions

Contracts awarded without a call for competition on this ground must be limited to strictly necessary services to deal with the urgency of this emergency.

The Mapa (or adapted procedure contract) allows each public purchaser to define its own rules in compliance with the general principles of public procurement (equal treatment of candidates, transparency of procedures, equal access to public procurement).

There are Mapas based on the value of the public contracts and Mapas based on the type of contracts.

Mapa based on the value of the public contracts

Procedures are adapted for contracts the amount of which is between €40,000 HT: titleContent and the following thresholds:

  • 5,382,000 HT for public procurement of work (State and local authorities)
  • 140,000 HT for public procurement supplies or services of the State
  • 215,000 HT for public procurement supplies or services of local authorities
  • 431,000 HT for public procurement of supplies or services of network operators, defense or security services

Above these thresholds, the formalized procedure applies.

Mapa due to the type of markets

Irrespective of the estimated value of the contract, the following contracts may be awarded according to an appropriate procedure:

  • Markets in social and other specific services. These include services related to one of the following areas:
    • Health, social or health care
    • Administrative, educational or cultural
    • Hotels and restaurants
    • Legal (Courts Administration Services)
    • Penitentiary
    • Postal
  • Services of legal representation of the public purchaser in litigation or amicable proceedings. It can also be a legal consultation.
  • Some defense and security contracts. In particular, the following services are not covered (maintenance and repair, land, air and rail transport, telecommunications, information technology and research, building cleaning and property management services).

The formalized procedure shall apply to supply, service and works contracts for which the amount before tax exceeds the financial thresholds established by the European Commission. These thresholds are updated every two years and are published in the Official Journal in the form of notices.

What are the thresholds for formalized procedures?

The use of a formalized procedure shall be obligatory for the following contracts:

  • Public supply and service contracts of central public authorities (President of the Republic, Prime Minister, Ministers and other collaborators) of an amount equal to or greater than 140,000 HT: titleContent
  • Public supply and service contracts awarded by a local authority or a public health establishment for an amount equal to or greater than 215,000 HT
  • Public supply and service contracts of the contracting entities (companies operating networks in water, electricity, transport and gas) of an amount equal to or greater than 431,000 HT
  • Public works contracts of an amount equal to or exceeding 5,382,000 HT

What are the 3 types of formalized procedures?

Where the estimated value of the contract is equal to or greater than the European thresholds, the contract shall be awarded according to one of the following formalized procedures:

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Tender

Open call for tenders

The invitation to tender shall be open when any supplier or service provider may apply.

In this case, the minimum lead times to apply are:

  • 35 days from dispatch of the contract notice by the buyer
  • 30 days if tenders are submitted electronically
  • 15 days where an emergency situation, duly justified, makes the minimum time limit impossible to comply with

This minimum period may be shortened to 15 days if the buyer has published a pre-information notice or a periodic indicative notice which has not been used as a call for competition notice.

Restricted RFQ

Tender shall be restricted where only candidates pre-selected by the buyer may submit a tender.

Pre-selection shall be made on the basis of the economic operator's turnover, professional skills and human and technical resources.

In this case, the minimum lead times to apply are:

  • 30 days from the date on which the contract notice or the invitation to confirm interest is sent by the contracting authorities
  • 15 days from the date on which the contract notice or the invitation to confirm interest is sent by the contracting entities

The time limit for receipt of tenders shall be no less than 30 days from the date on which the invitation to tender is sent (25 days if sent by electronic means).

It may be reduced to 10 days in case of urgency or if the buyer publishes a pre-information notice or a periodic indicative notice at least 35 days before the publication of the contract notice, which contains the same information of the contract notice.

Procedure with negotiation

In this procedure, a buyer negotiates the terms of the public contract with one or more economic operators.

The buyer must indicate in the consultation documents the minimum requirements to be met by tenders. Those requirements shall be sufficiently precise to enable the economic operator to determine the nature and scope of the public contract and to decide to participate in the procedure.

Negotiation procedure by a contracting authority

The contracting authority may award its contracts under the procedure with negotiation in the following cases:

  • A need that cannot be met without adapting readily available solutions
  • Need that consists of innovative solution (new or substantially improved works, supplies or services carried out with new production or construction processes)
  • Market that includes design services
  • A contract which cannot be awarded without prior negotiation because of special circumstances relating to its nature, complexity or the legal and financial arrangements or because of the risks involved
  • Contract with technical specifications which cannot be precisely measured by the contracting authority,
  • Following a tendering procedure in which only irregular or unacceptable tenders have been submitted, the buyer may award a new contract without its initial contract terms being too altered.

The period of receipt of applications shall be 30 days from the date of dispatch of the contract notice or of the date of dispatch of the invitation to confirm interest if the call for tender has been the subject of a prior information notice.

As for the time limit of receipt of tenders, it shall be 30 days from the date of dispatch of the invitation to tender (25 days if dispatched by electronic means). This period may be reduced to 10 days in case of emergency. It shall also be reduced to 10 days if the buyer publishes a pre-information notice which has not been used as a call for competition at least 35 days before the publication of the contract notice. This pre-information notice must contain the same information as the contract notice.

The contracting authority shall negotiate with all tenderers their initial and subsequent tenders. He can't negotiate the final offer.

It may, however, award the contract on the basis of the initial tenders without negotiation, if it has indicated in the contract notice or in the invitation to confirm that it reserves the right not to negotiate. Where the contracting authority wishes to conclude negotiations, it shall inform the remaining tenderers and fix a common deadline for the submission of any new or revised tenders.

Negotiation procedure by a contracting entity

The contracting entities may freely revert to the negotiation procedure.

The period of receipt of applications is 15 days from the date of dispatch by a contracting entity of the contract notice or the date of dispatch of the invitation to confirm interest if the call for tender has been the subject of a prior information notice.

As for the time limit for receipt of tenders, it may be fixed by common agreement with the selected candidates, provided that this period is the same for all.

In the absence of agreement, the contracting entity shall fix a time limit which may not be less than 10 days from the date on which the invitation to tender is dispatched.

The contracting entity may award the contract on the basis of the initial tenders without negotiation, provided that it has indicated in the contract notice or in the invitation to confirm that it reserves the right not to negotiate.

Competitive Dialog

Competitive dialog is the procedure by which the buyer dialog with admitted candidates participate in order to define or develop solutions to meet its needs. Candidates are invited to submit an offer based on these solutions.

The buyer can use this procedure when he cannot establish the technical means to meet his needs (or the legal or financial set-up of his project).

It shall define its need in the contract notice or in a partial project, to enable it to select candidates. The buyer then opens a dialog with the candidates to develop one or more solutions. It is on this basis that the participants submit an offer.

It takes place in 3 phases:

  1. Submission of applications (minimum period of 30 days from the date on which the contract notice is sent)
  2. Opening of the dialog with the selected candidates, until the buyer is able to identify the solution(s) that could be used to meet the need
  3. Invitation to submit a final tender

Participants may be asked for details or additions to their final offer. However, such requests may not have the effect of altering essential aspects of the final offer such as the needs and requirements of the buyer.

The buyer may provide for premiums for the benefit of the participants in the dialog. The amount of the premium shall be indicated in the consultation documents. The remuneration of the contract holder shall take account of any premium paid to him for his participation in the procedure.

To speed up the reconstruction and rehabilitation of buildings damaged or destroyed during the urban violence of summer 2023, it is temporarily possible to pass a negotiated contract without advertising, but with prior call for competition.

Possibility of awarding works contracts without prior notice but with a call for competition

The negotiated contract without advertising, but with prior call for competition must be concluded under the following conditions:

  • The work is needed to rebuild or repair public facilities (roads, networks, bus shelters, sports or cultural facilities, etc.) and buildings (town halls, police stations, schools, media libraries, etc.) affected by damage during the violence between June 27 and July 5, 2023.
  • Works contracts shall satisfy a need the estimated value of which is less than €1,500 000 excluding taxes.
  • The amount of the lots is less than €1 000 000 excluding taxes, and the aggregate amount of such lots shall not exceed 20 % of the total estimated value of all lots.
  • A consultation is initiated or an advertisement notice is sent between 28 july 2023 and 28 april 2024.
Possibility of derogating from the allotment obligation

In principle, contracts must be awarded in separate lots. In order to derogate from this allotment obligation, the buyer must justify that he is in one of the following situations:

  • it is impossible for it to carry out the tasks of organization, piloting and coordination
  • competition may be restricted.
  • the performance of services in separate batches may be technically difficult or more costly.

The buyer may derogate from the allotment obligation without justification for all contracts necessary for reconstructions or repairs after the urban violence.

Example :

A single works contract may be awarded with a general building company for the rehabilitation of a building requiring masonry, electricity, plumbing, structural work, painting, flooring, carpentry, etc.

Possibility of awarding a design-realization contract as part of the reconstruction work

It is a works contract allowing the public purchaser to entrust a single contractor with a mission involving both the preparation of studies and the execution of the works.

It can be passed whatever the amount estimated work. Such contracts must generally be for the improvement of energy efficiency or the construction of a new building going beyond the thermal regulations making it necessary for the contractor to be involved in the work studies.

This is therefore a new temporary case of a design-build contract. It can only apply between 28 July 2023 and 28 April 2024.

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