French public procurement laws updated in case of force majeure
New legislature has been created during the COVID-19 crisis to deal with the impact of "force majeure" events. This information is available in French here. We will give a basic overview of the changes and new possibilities below.
Two kind of emergencies are described:
A simple urgency
A simple urgency is assessed on a case-by-case basis. It can only be judged as an urgency if the normal deadlines for receiving applications and offers are made impossible to be carried out. As a result, buyers must be able to justify the objective nature of the emergency, as well as the impossibility of meeting regulatory deadlines. It cannot result from their fault, and, in particular, from the deficiency of their services in the management of the procurement procedure.
The urgency makes it possible to reduce the minimum delay for receiving applications and offers, as well as the times for sending additional information on the consultation documents. This possibility of reducing deadlines is not open in competitive dialogue, nor for contracting entities in the negotiated procedure with prior call for competition.
An imperative urgency
Article R. 2122-1 of the code of law (conventional markets) defines imperative urgency as resulting from external circumstances that the buyer could not foresee. With regard to defense or security markets, article R. 2322-4 of the code defines imperative urgency as falling under "unforeseeable and external circumstances, in particular technological or natural disasters". The imperative urgency therefore corresponds to a reinforced case of emergency and must, as such, be distinguished from the "simple" emergency.
With regard to concession contracts, article R. 3121-6 now provides the granting authority to conclude, provisionally, without prior publicity or competition, a concession contract in the event of 'emergency'.
The Council of State specifies however that, for this derogation to apply, it is necessary that three considerations are met:
the granting authority must, irrespective of its will, be suddenly unable to continue to provide the service through its contracting partner or to provide it itself;
this possibility must be justified by a reason of general interest tending to the continuity of the public service;
the duration of the contract cannot exceed that required to implement an advertising and competitive bidding procedure if the community intends to continue the delegation of the service, or, if not, to organize the conditions for its resumption under management or for redefine its consistency.
So, to sum up the buying entities can create and award bids quicker now without publicity and on short notice to alleviate problems during an emergency.