On the basis of this authorization, Ordinance No. 2020-319 of 25 March 2020 (“Ordonnance n° 2020-319 du 25 mars 2020”) adapts the rules of procedure and execution of public contracts in order to enable contracting authorities and economic operators to cope with the difficulties they encounter during the state of health emergency.
The French Public Procurement Code also contains provisions to deal with such emergencies.
Shortening time limits for standard procedures
In cases where a state of urgency renders the regular time limits for the tender procedure impracticable, the French Public Procurement Code allows to shorten the time limits for receipt of requests to participate and for receipt of tenders (Articles R. 2161-2 and following).
The shortened time limits are as follows:
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- In open procedure: From 35 to 15 days (article R. 2161-3);
- In restricted procedure:
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- Receipt of requests to participate: From 30 days to 15 days for (article R. 2161-6);
- Receipt of tenders: From 30 days to 10 days for (article R. 2161-8).
- Procedure with negotiation: Same as under the restricted procedure (articles R. 2161-12 and R. 2161-15).
- Adapted procedure: The determination of time limits is free but must take into account several parameters (e.g. contract value, complexity of the performance, importance of the bids…). In urgent cases, the assessment of the time limit shall be more flexible.
As a reminder, a state of urgency must satisfy three conditions: (i) the need must be met quickly, (ii) the state of urgency is linked to special circumstances beyond the contracting authority’s control, (iii) the regular time limits are impracticable.
The European Commission confirmed that the current Covid-19 crisis presents an extreme and unforeseeable urgency and that, when required, the time limits can be shortened (Communication 2020/C 108 I/01).
Direct awards are permissible due to extreme urgency
In cases of extreme urgency (“Urgence impérieuse”), the French Public Procurement Code allows the award of contracts without advertising and tendering procedure (Article R. 2122-1 for public contracts).
Extreme urgency must result from external and unforeseeable events making regular time limits impracticable. In such hypothesis, the contract must be limited to what is necessary to deal with the emergency situation.
Although its use should remain exceptional, the European Commission considered that the negotiated procedure without prior publication could be used to satisfy certain immediate needs (Communication 2020/C 108 I/01).
Other options available to contracting authorities
When the term of a public contract expires during the state of health emergency and a new procurement procedure cannot be organized because of the Covid-19 pandemic, the contract may be extended by an amendment (Article 4 of Ordinance No. 2020-319).
Furthermore, in the event of default by the contractor, the contracting authority may have a third party perform the services, even though the initial contract contained an exclusivity clause (Article 6 of Ordinance No. 2020-319). Provided the conditions are met, it seems that such a substitute tender could be concluded without prior publication in accordance with Article R. 2122-1.
Finally, derogating procedures may be used (i) for contracts requiring secrecy or special security measures and (ii) for contracts where the protection of the essential interests of the State so requires. Article L. 2512-3 of the French Public Procurement Code thus provides that such contracts are subject to only a very limited set of rules. For instance, in 2009, contracts for the supply of vaccines against the H1N1 epidemic were awarded pursuant to similar provisions of the previous Public Procurement Code (Article 3 of the 2006 Code).
Baker McKenzie’s Public Procurement World: More information about the world’s most important public procurement laws and guidance in light of the global COVID-19 pandemic.
