What impact does COVID-19 have on tender procedure in France?

Companies in the process of signing a public contract (procurement or concession contracts) can anticipate the consequences of COVID-19. Ongoing tender procedures would most likely be suspended or delayed. Due to the COVID-19 situation, public hospitals or purchasers needing specific IT or telecoms equipment, for instance, may need to urgently purchase health equipment or other.

We provide you with practical answers to questions that are raised by companies which are currently participating or wish to participate in a public tender procedure.

May a public purchaser stop an ongoing tender procedure?

YES, but the public purchaser has to justify its abandonment decision.

The decision to give up the procedure shall be founded on serious grounds, such as the need to ensure equal competition between the candidates. The public purchasers shall notify this decision to all candidates. Candidates participating in the tender procedure may file an appeal against this abandonment decision before the administrative courts.

The containment measures taken in France since 18 March 2020 following the spread of COVID-19 prevent most public purchasers in pursuing numerous tender procedures already engaged, since for instance site visits or interviews are not possible.

May a public purchaser extend the deadline of a tender procedure and the validity period of the tenders?

YES, under certain conditions.

The public purchaser shall, however, request from candidates their agreement for this extension. If all candidates agree with the extension of validity of their tenders, the public purchaser may set a new deadline and extend the validity period of the tenders already submitted.

In the case of a candidate disagreeing with such a time extension, the public purchaser may not postpone the deadline of the tender procedure and may either award the contract within the initial deadline or abandon the deadline.

May a public purchaser award a public procurement contract without complying with the normal tender procedures?

YES, in the current context of the COVID-19 pandemic.

The public purchasers have two possibilities.

• On the simple emergency ground (Article R. 2161-8 3° of the French Procurement Code), a public purchaser may decide to reduce the deadline for the receipt of tenders to speed up the tender procedure. The emergency situation results in events caused by the public purchaser or events that were unforeseeable by the public purchaser.
  
  In the event of a litigation, the administrative courts determines on a case-by-case analysis, if the conditions of the simple emergency are met (e.g. see Conseil d’Etat, 30,09,1996, No. 164114: the use of the simple emergency procedure to award a public procurement contract relating to the maintenance of Marne-la-Vallée town, in order to take into account the imminent opening of the Eurodisney park nearby).
  
  
• On the imperative emergency ground (Article R. 2122-1 of the French Procurement Code), a public purchaser may decide to sign a public procurement contract without launching any tender procedure. The imperative urgency hypothesis is very limited and shall only result from external circumstances, which could not have been foreseen by the public purchaser and prevent it to comply with the normal tender procedure timeframe.

In the case of a health crisis, such as the COVID-19 situation, public purchasers (i.e. hospitals, ministries) and hospitals may order health care equipment on this ground.

However, as specified by the Ministry of Economy legal department on 19 March 2012, these orders shall be limited in time and amount strictly necessary to satisfy the health urgent needs, even if these orders need to be renewed.

For any question, please send us an email to: [email protected]