Public business law and environment

/Public business law and environment

With regard to public procurement and other contracts, the following measures are in place:

Recognition of COVID-19 as “force majeure” event

Absence of penalties applied by the State to companies that are late on public worksites

Various measures for adapting the rules for the award, procedure or execution of contracts subject to the Code of Public Procurement and Public Contracts that are not covered by it during the health crisis caused by the Covid epidemic-19

Application to the aforementioned contracts  in force or entered into during the period from March 12, 2020 until the end of the state of health emergency, increased by a period of 2 months.

  • except where the services covered by the contract cannot be delayed, extension of the time limits for the receipt of applications and tenders in ongoing procedures by a sufficient period, fixed by the contracting authority, to allow economic operators to submit their applications or tenders
  • where the arrangements for competitive tendering provided for under the public procurement code in the documents relating to the consultation of undertakings cannot be complied with by the contracting authority, the possibility of adjusting them during the procedure in accordance with the principle of equal treatment of candidates
  • possibility of extending contracts which have expired during the period of the state of health emergency plus two months by means of an amendment beyond the duration provided for in the contract where the organization of a competitive tendering procedure cannot be implemented. In the case of a framework agreement, this extension may be extended beyond the duration mentioned in Articles L. 2125-1 and L. 2325-1 of the Public Procurement Code. The extension of a concession contract beyond the duration provided for in Article L. 3114-8 of the Public Procurement Code is exempt from the prior review by the competent State authority provided for in the same Article. In all cases, the duration of this extension may not exceed the duration of the state of health emergency, plus two months, plus the time required to reopen competition at the end of its term
  • possibility for buyers, by means of an amendment, to modify the conditions of payment of the advance. Its rate may be increased to an amount greater than 60% of the amount of the contract or purchase order. They are not required to require the provision of a security on first demand for advances exceeding 30% of the contract amount
  • in the event of difficulties in the performance of the contract, unless the contract provides for more favorable terms:

. when the contractor is unable to comply with the time limit for performance of one or more obligations under the contract or when such performance in due time would require means the mobilization of which would place a manifestly excessive burden on the contractor, this time limit shall be extended by a period at least equivalent to the period of the state of health emergency, increased by a period of 2 months, at the request of the contractor before the expiry of the contractual time limit

. when the holder is unable to execute all or part of an order form or contract, in particular when he demonstrates that he does not have sufficient means or that their mobilisation would place a manifestly excessive burden on him: (b) The purchaser may conclude a substitute contract with a third party to meet those of its requirements which cannot be delayed, notwithstanding any exclusivity clause and without the holder of the original contract being able to engage the contractual responsibility of the purchaser on this ground; the execution of the substitute contract may not be carried out at the expense and risk of that holder

. when the cancellation of a purchase order or the termination of the contract by the purchaser is the consequence of measures taken by the competent administrative authorities in the context of a state of health emergency, the holder may be compensated by the purchaser for expenses incurred when they are directly attributable to the execution of a cancelled purchase order or a terminated contract

. where the purchaser is forced to suspend a lump-sum contract in progress, he shall proceed without delay to settle the contract in accordance with the terms and for the amounts provided for in the contract. At the end of the suspension, an amendment shall determine any necessary modifications to the contract, its resumption in the same form or its termination, as well as the sums due to the holder or, where applicable, the sums due by the latter to the buyer;

. when the grantor is led to suspend the execution of a concession, any payment of a sum to the grantor is suspended and, if the situation of the economic operator justifies it and up to its needs, an advance on the payment of the sums due by the grantor may be paid to it

. where, without the concession being suspended, the grantor is led to modify significantly the terms of performance provided for in the contract, the concessionaire shall be entitled to compensation for the extra cost resulting from the performance, even partial, of the service or works, where the continued performance of the concession requires the use of additional means which were not provided for in the original contract and which would represent a manifestly excessive burden in relation to the financial situation of the concessionaire

Dispensing, during the period of a state of health emergency, with the obligation to obtain the prior opinion of the tendering committee for amendments that increase the amount of the contract by more than 5%