Ordinance No. 2015-899 of July 23, 2015, which lays the foundations for the new public procurement regulations, was published in the Official Journal on July 24, 2015.
Indeed, the transposition of European directives adopted in 2014 made it necessary to rewrite the French public procurement regulations. The government has decided to start from scratch.
Forgotten article numbers, known by French practitioners and maintained, from reform to reform, since 2001. From now on, we will have to juggle a hundred articles and application texts of regulatory origin.
The entire system will come into effect in the first quarter of 2016. The new ordinance n ° 2015-899 of July 23, 2015 relating to public procurement, does not provide for an effective date. It leaves it to regulatory texts to fix it. Anyway, it will occur no later than April 1, 2016 (art 103 of the ordinance).
Thus, the scope of this new code is widened. In fact, all contracting authorities subject to the Public Procurement Code or the order of June 6, 2005, are now subject to common legal principles. Similarly, completely private structures, which would benefit from a subsidy of more than 50% from a structure subject to public procurement, would fall within the scope of the CMP. Subcontracting can be limited by the contracting authority as to its extent, unlike today, where only total subcontracting is prohibited.
Contracting authorities from other European countries can join French order pools, and French buyers can use central purchasing offices located in other European countries. A contracting authority may automatically dismiss the offer of a company which has not given satisfaction in a previous contract, to the point that it has been terminated and damages have had to be paid (the prescription of the exclusion is three years). The buyer freely defines its award criteria, but the ordinance specifies that the criteria do not have the effect of conferring an unlimited freedom of choice on the buyer and must guarantee the possibility of real competition.
The ordinance does not in fact provide a list of usable criteria, as it exists in article 53 of the current Public Procurement Code. A list of works for public works contracts will be published in the Official Journal. This was not the case in previous reforms to the Code of Public Procurement. Only the “services” markets benefited from an explicit list of their field of application. Now, with the 2015 ordinance, officially, the “competition” certainly still exists. But it is no longer a fully-fledged “procurement procedure” with its overriding rules. Finally, this ordinance is fundamental. It profoundly changes the current law of public procurement and practitioners will have to appropriate it in order to master all the mysteries and avoid falling into the many traps it contains.