In France, the procurement of government contracts is primarily governed by the Public Procurement Code (code de la commande publique or CCP). The CCP brings together the rules governing the awarding and performance of public contracts and concessions in a single text. They were previously issued in different texts until 1 April 2019. In particular, the CCP incorporates the provisions of Ordinance No 2015-899 on public contracts and Ordinance No 2016-65 on concessions, both of which transposed European Directives (Directive 2014/23/EU; Directive 2014/24/EU; and Directive 2014/25/EU) into French law.

Litigation rules vary depending on whether a public contract or a concession is governed by public or private law.

• Disputes relating to administrative contracts are governed by the Code of Administrative Justice (Code de justice administrative or CJA).
• Disputes relating to private law contracts are governed by Ordinance No 2009-515, the Code of Judicial Organisation (Code de l’organisation judiciaire or COJ) and the Code of Civil Procedure (Code de procédure civile or CPC).

Public procurement law applies to contracting authorities and contracting entities.

Contracting Authorities (Article L. 1211-1 of the CCP)

The CCP sets out three categories of contracting authorities as follows.

• All entities governed by public law. These include the French State, national public bodies, local authorities and local public bodies.
• Entities governed by private law if:
1. they have been established for the specific purpose of meeting needs in the general interest which are not of an industrial or commercial nature; and
2. their activity is mainly financed by a contracting authority, their management is subject to control by a contracting authority or their administrative, management or supervisory board is primarily appointed by a contracting authority.
• Private law bodies with legal personality set up by contracting authorities to carry out joint activities.

Contracting Entities (Article L. 1212-1 et seq of the CCP)

The CCP also applies to contracting entities, namely:

• contracting authorities operating in the utilities sector (water, energy, transport and postal services);
• public enterprises operating in the utilities sector. Public enterprises are entities engaged in the production or marketing of goods or services over which one or more contracting authorities have a dominant influence, directly or indirectly; and
• private law bodies operating in the utilities sector on the basis of special or exclusive rights.

French public procurement law applies to public contracts and concessions.

Article L. 1111-1 of the CCP defines public contracts as contracts for pecuniary interest concluded between one or more contracting authorities or entities and one or more economic operators and having the execution of works, the supply of products or the provision of services as their objective.

Article L. 1121-1 of the CCP defines concessions as contracts for pecuniary interest by which one or more contracting authorities or entities entrust the execution of works or the provision and the management of services to one or more economic operators to whom a risk associated with the operation of the works or services is transferred. The reward consists either solely in the right to exploit the works or the services or in that right together with payment.

All contracts that meet the definition of a public contract or a concession fall within the scope of the CCP, regardless of their value.

However, contracting authorities or entities may award contracts without specific prior publication or competitive tendering or may apply a more or less flexible procedure depending on the value of the contract.

A distinction must be made depending on whether the contract is a public contract or a concession.

Thresholds for Public Contracts

A contracting authority or entity may award a contract without specific prior publication and competitive tendering if the value of the contract is below EUR40,000. The same applies if the contract concerns innovative works, supplies or services and is worth less than EUR100,000 (see 2.5 Direct Contracts). Works contracts with a value below EUR100,000 are exempt from prior publication and competitive tendering until 31 December 2025. The possibility of making this exemption permanent is currently under discussion in the French Parliament (see 5.5 Legislative Amendments Under Consideration). For contracts with a value below the aforementioned thresholds, the contracting authority or entity remains subject to the general principles of public procurement (see 1.5 Key Obligations of Awarding Authorities).

The terms and conditions of the awarding procedure are freely determined by the contracting authority or entity (procédure adaptée) when the value of the contract is between EUR40,000 and the thresholds set by the European Directives on public procurement, which the CCP refers to. The latest thresholds, in force since 1 January 2024, are:

• EUR143,000 (exclusive of VAT) for supply and service contracts awarded by central contracting authorities;
• EUR221,000 (exclusive of VAT) for supply and service contracts awarded by other contracting authorities;
• EUR443,000 (exclusive of VAT) for supply and service contracts awarded by contracting entities and for defence and security contracts; and
• EUR5,538,000 (exclusive of VAT) for works contracts.

When the value of the contract exceeds the European thresholds, the contracting authority or entity must choose between an open or restricted procedure, a negotiated procedure or a competitive dialogue (procédure formalisée) (see 2.4 Choice/Conditions of a Tender Procedure).

Threshold for Concessions

Irrespective of the value of the concession, the contracting authority or entity is free to determine the conditions of the awarding procedure (Article L. 3121-1 of the CCP). However, minimum requirements must be met, the intensity of which varies according to whether the value of the concession is below or above the European threshold of EUR5,538,000 (Article R. 3126-1 of the CCP).

In principle, any economic operator from any jurisdiction may participate in French public procurement procedures.

The principle supporting the rule that all economic operators are free to bid for public contracts or concessions has constitutional value, as do the principles of equal treatment and transparency (Conseil constitutionnel, 26 June 2023, Loi habilitant le Gouvernement à simplifier le droit, No 2003-473 DC).

However, there are limits to this principle, as Article L. 2153-1 of the CCP allows contracting authorities or entities to reject tenders from economic operators who are not nationals of a member state of the EU or of a State which is a party to the Government Procurement Agreement of the World Trade Organisation or to any other similar international agreement which the EU is a party to (see 5.4 Recent Important Court Decisions).

In addition, according to Articles L. 2353-1 and L. 3124-6 of the CCP, defence and security contracts are awarded to economic operators based in the EU or the European Economic Area. On a case-by-case basis, the contracting authority or entity may authorise economic operators from a third country to participate in the awarding procedure.

Regulation (EU) 2022/576 prohibits the awarding of a contract or the performance of a contract with economic persons of Russian nationality or owned by a Russian person.

Under Article L. 3 of the CCP, contracting authorities and entities must comply with the following principles:

• equal treatment;
• free access to awarding procedures;
• transparency;
• efficiency of public procurement; and
• proper use of public funds.

Awarding procedures are generally published in advance. Publication methods vary according to the type of contracting authority or entity, the type of contract and its value.

For public contracts awarded by the French State, national public bodies of a non-industrial and non-commercial nature, local authorities and local public bodies, publication is carried out in line with the procedures set out in Articles R. 2131-12 and R. 2131-16 of the CCP.

• When the value of the contract is between EUR40,000 and EUR90,000, the contracting authority is free to choose the method of publication according to the characteristics of the contract.
• When the value of the contract is between EUR90,000 and the European thresholds, a contract notice is published in either the Bulletin officiel des annonces des marchés publics (BOAMP) or in newspapers authorised to publish legal announcements.
• When the value of the contract exceeds the European thresholds, the contract notice is published in the BOAMP and in the Official Journal of the European Union (the “OJEU”).

For public contracts awarded by other contracting authorities and entities, publication is carried out in line with the procedures set out in Articles R. 2131-13 and R. 2131-16 of the CCP.

• When the value of the contract is between EUR40,000 and the European thresholds, the contracting authority or entity is free to determine the publication methods according to the characteristics of the contract.
• When the value of the contract exceeds the European thresholds, the contract notice is published in the OJEU.

For concessions below the European threshold, the contracting authority or entity must publish a concession notice in the BOAMP or in a newspaper authorised to publish legal announcements (Article R. 3126-4 of the CCP).

For concessions above the European threshold, the contracting authority must publish the concession notice in the OJEU, in the BOAMP or a newspaper authorised to publish legal announcements, and in a periodical corresponding to the economic sector of the concession (Article R. 3122-2 of the CCP).

The contract or concession notice includes a description of the main terms of the contract or concession and the conditions for participation in the awarding procedure.

Before starting a procedure for the awarding of a public contract, the contracting authority or entity may carry out consultations or market studies and seek advice or inform economic operators of its project and requirements (Article R. 2111-1 of the CCP).

The results of these studies or exchanges with economic operators may be used by the contracting authority or entity, provided that their use does not have the effect of distorting competition or infringing the general principles of public procurement mentioned in Article L. 3 of the CCP.

The CCP specifies four main types of procedure for awarding a public contract whose value is above the European thresholds (procédure formalisée). They are as follows.

• Open procedure (Article R. 2124-2 1° of the CCP): any interested economic operator may submit a tender. Negotiation is prohibited.
• Restricted procedure (Article R. 2124-2 2° of the CCP): only economic operators selected by the contracting authority or entity may submit a tender. Negotiation is also prohibited.

• Negotiated procedure (Article L. 2124-3 of the CCP): provided certain requirements are met (see 2.4 Choice/Conditions of a Tender Procedure), the contracting authority or entity negotiates the terms of the contract with one or more selected economic operators directly.

• Competitive dialogue (Article L. 2124-4 of the CCP): provided certain requirements are met (see 2.4 Choice/Conditions of a Tender Procedure), the contracting authority or entity conducts a dialogue with selected economic operators in order to identify and determine the means by which the needs of the contracting authority or entity can best be met. On the basis of this dialogue, the selected economic operators are invited by the contracting authority or entity to submit their tenders.

When the value of the public contract is below the European thresholds, the contracting authority or entity is free to choose the terms and conditions of the awarding procedure (procédure adaptée)(see 2.4 Choice/Conditions of a Tender Procedure).

In cases strictly limited by the CCP, contracting authorities or entities may also award public contracts or concessions directly to an economic operator without prior publication and competitive tendering (marchés et concessions passés sans publicité ni mise en concurrence) (see 2.5 Direct Contract Awards).

Public Contracts Between EUR40,000 and the European Thresholds (Article R. 2123-4 et seq of the CCP)

The contracting authority or entity determines the terms and conditions of the awarding procedure according to the nature and characteristics of the need to be met, the number and location of the economic operators likely to submit a tender, and the circumstances of the procurement. Negotiation is possible. If the contracting authority or entity refers to a specific procedure laid down for public contracts whose value exceeds the European thresholds (procédure formalisée), it must comply fully with the rules of this procedure.

Public Contracts Above the European Thresholds (Article R. 2124-1 et seq of the CCP)

The contracting authority or entity must award the contract by means of an open or restricted procedure, a negotiated procedure or a competitive dialogue.

There are no conditions to be fulfilled in order to opt for an open or restricted procedure. The contracting authority is free to choose either procedure.

While a contracting entity may freely award contracts according to a negotiated procedure or a competitive dialogue, a contracting authority may only use these two procedures if:

• the need of the contracting authority cannot be met without adapting immediately existing solutions;
• the contract involves innovative solutions;
• the contract includes conceptual services;
• the contract cannot be awarded without prior negotiation due to specific circumstances linked to the nature or complexity of the contract, the legal or financial framework, or because of the risks involved;
• the contracting authority is unable to describe the technical requirements with sufficient precision by reference to a standard, a European Technical Assessment, a common technical specification or a technical reference document; or
• only irregular or unacceptable tenders have been submitted in an open or restricted procedure.

Concessions That Cannot Be Awarded Directly to an Economic Operator

The contracting authority or entity is free to determine the terms and conditions of the awarding procedure and may resort to negotiation (Article L. 3121-1 of the CCP).

Direct awards of public contracts and concessions are only permissible under the conditions listed exhaustively in the CCP (Articles R. 2122-1 et seq and R. 3121-6 of the CCP). In particular, a contracting authority or entity may award a contract without prior publication and competitive tendering (marchés et concessions passés sans publicité ni mise en concurrence) in the following cases:

• in cases of urgency;
• when an initial competitive tendering was unsuccessful;
• when the public contract or concession may only be awarded to a specific economic operator for technical or artistic reasons, or to protect exclusive rights;
• when the purpose of the public contract is to provide services similar to those already provided by the contractor under a previous public contract; and
• when the public contract has a value of less than EUR40,000 or the public contract concerns innovative works, supplies or services and has a value of less than EUR100,000. In both cases, the contracting authority or entity must ensure that it selects a relevant tender, makes efficient use of public funds and does not systematically contract with the same economic operator when there are several tenders likely to meet its need.

In all cases, contracts awarded without prior publication and competitive tendering must comply with the general principles of public procurement (see 1.5 Key Obligations of Awarding Authorities).

Public Contracts Above EUR40,000

According to Article R. 2132-2 of the CCP, tender documents must be made available on a dematerialised platform from the date of publication of the contract notice.

Concessions Above the European Threshold

According to Article R. 3122-9 of the CCP, tender documents must be made available on a dematerialised platform from the date of publication of the concession notice or the date of dispatch of an invitation to submit a tender.

As a general rule, the contracting authority or entity must set time limits for the receipt of expressions of interest and tenders, taking into account, in the case of public contracts, the complexity of the contract and the time required by economic operators to prepare their tenders (Article R. 2151-1 of the CCP) and, in the case of concessions, the nature, value and characteristics of the works or services (Articles R. 3123-14, R. 3124-2, R. 3126-8 and R. 3126-9 of the CCP).

Public Contracts Above the European Thresholds

The minimum time limits for receipt of expressions of interest and tenders depends on the procedure chosen by the contracting authority (Article R. 2161-12 et seq of the CCP).

• Open procedure: the minimum time limit for receipt of tenders is 35 days from the date of dispatch of the contract notice.
• Restricted procedure and negotiated procedure: the minimum time limit for receipt of requests to participate is 30 days (15 days for contracts awarded by contracting entities) from the date of dispatch of the contract notice or, where a prior information notice is used as a means of calling for competition, from the date of dispatch of the invitation to confirm interest. The minimum time limit for the receipt of tenders is 30 days (ten days for contracts awarded by contracting entities) from the date of dispatch of the invitation to submit a tender.
• Competitive dialogue: the minimum time limit for receipt of requests to participate is 30 days from the date of dispatch of the contract notice.

Concessions Above the European Threshold

The minimum time limit for receipt of requests to participate is 30 days from the date of dispatch of the concession notice (25 days if requests to participate can be submitted electronically), and the minimum time limit for receipt of tenders is 22 days from the date of dispatch of the invitation to submit a tender (17 days if tenders can be submitted electronically) (Articles R. 3123-14 and R. 3124-2 of the CCP).

The CCP sets out the eligibility criteria to be met by economic operators to participate in the awarding procedure, as well as the grounds for exclusion from the awarding procedure.

Eligibility Criteria

The contracting authority or entity may not impose any conditions in the awarding procedure other than those designed to ensure that interested economic operators have the professional competence, economic and financial standing or technical and professional ability required to perform the contract (Articles L. 2142-1 and L. 3123-18 of the CCP). These conditions must be related and proportionate to the purpose of the contract or the conditions of its performance.

Grounds for Exclusion

The CCP distinguishes between mandatory grounds for exclusion and grounds for exclusion at the discretion of the contracting authority or entity.

Mandatory grounds for exclusion (Articles L. 2141-1 et seq and L. 3123-1 et seq of the CCP)

Economic operators who have been convicted of a criminal offence, who are in breach of their tax and social security obligations, who are the subject of insolvency proceedings or who have breached the rules on illegal employment must be excluded from the awarding procedure.

Discretionary grounds for exclusion (Articles L. 2141-7 et seq and L. 3123-7 et seq of the CCP)

The contracting authority or entity may, at its discretion, exclude economic operators from the awarding procedure, in particular where:

• they have committed a serious breach of their contractual obligations during the performance of a previous public contract or concession;
• they have not complied with their obligations to establish a vigilance plan or an assessment of their greenhouse gas emissions;
• they have undertaken to unduly influence the decision-making process of the contracting authority or entity, to obtain confidential information likely to give them an undue advantage in the awarding procedure or have provided misleading information;
• they have entered into an agreement with other economic operators with a view to distorting competition; or
• their participation in the awarding procedure creates a conflict of interest with the contracting authority or entity.

Right to “self-clean”

Where a mandatory or a discretionary ground for exclusion applies, an economic operator has the right to “self-clean” by providing the contracting authority or entity with evidence that it has taken measures to demonstrate its reliability. If the contracting authority or entity considers this evidence to be sufficient, the economic operator may not be excluded from the awarding procedure (Articles L. 2141-6-1, L. 2141-11, L. 3123-6-1 and L. 3123-11 of the CCP).

Public Contracts Awarding Procedures (Article R. 2142-15 et seq of the CCP)

In all procedures other than the open procedure, the contracting authority or entity may limit the number of candidates admitted to submit a tender or to participate in the competitive dialogue, provided that this number is sufficient to ensure effective competition. If the contracting authority intends to limit the number of candidates, it must indicate in the tender documents the objective and non-discriminatory criteria it intends to apply to this effect.

In awarding procedures conducted by contracting authorities, the minimum number of candidates may not be less than five in the case of a restricted procedure and three in the case of a negotiated procedure or competitive dialogue.

Concessions Awarding Procedures (Article R. 3123-11 et seq of the CCP)

The contracting authority or entity may limit the number of candidates admitted to submit a tender. In this case, it must specify a minimum number and, where appropriate, a maximum number of candidates in the tender documents. The number of candidates admitted to submit a tender must guarantee effective competition.

The contracting authority or entity must select economic operators by applying non-discriminatory criteria linked to the purpose of the contract and relating to their abilities.

Public Contracts Awarding Procedures

According to Article L. 2152-7 of the CCP, a public contract is awarded to the economic operator whose tender is the most economically advantageous on the basis of price or cost. The most economically advantageous tender may also be determined on the basis of a number of non-discriminatory criteria linked to the subject of the contract or its performance conditions. These may include environmental or social criteria.

For contracts above the European thresholds, the awarding criteria are weighted or, where weighting is not possible, are listed in descending order of importance (Article R. 2152-12 of the CCP).

Concessions Awarding Procedures

According to Article L. 3124-5 of the CCP, a concession contract is awarded to the economic operator whose tender represents the best overall economic advantage for the contracting authority or entity. The choice must be made on the basis of objective and precise criteria linked to the purpose of the contract or its performance conditions. These criteria may include environmental, social or innovation criteria.

The contracting authority or entity sets the awarding criteria in descending order of importance. The order of importance is indicated in the concession notice, in the invitation to submit a tender or in any other tender document (Article R. 3124-5 of the CCP).

When awarding public contracts and concessions, the contracting authority or entity must reject irregular or unsuitable tenders.

An irregular tender is one that does not meet the requirements set out in the tender documents, in particular because it is incomplete or does not comply with the applicable legislation (Articles L. 2152-2 and L. 3124-3 of the CCP).

An unsuitable tender is one that is clearly unable, without substantial modifications, to meet the needs and requirements of the contracting authority or entity (Articles L. 2152-4 and L. 3124-4 of the CCP).

In addition, for the awarding of public contracts only, the contracting authority or entity must reject unacceptable tenders, ie, tenders whose price exceeds the budget of the contracting authority or entity allocated to the contract (Article L. 2152-3 of the CCP), as well as abnormally low tenders (Article L. 2152-5 of the CCP).

An abnormally low tender is a tender whose price or cost is clearly underestimated and is likely to jeopardise the proper performance of the contract. When a tender appears to be abnormally low, the contracting authority or entity must require the economic operator to provide details and justification of the price or cost of its tender. If, after examining the justifications provided by the economic operator, the contracting authority or entity establishes that the tender is abnormally low, it must reject it.

The criteria for the selection of bidders and the evaluation of tenders must be communicated in advance, in line with the principles of transparency and equal treatment (Article L. 3 of the CCP).

Criteria for the Selection of Bidders

In the case of public contracts, the criteria for the selection of bidders are indicated in the contract notice or in the invitation to confirm interest or, in the absence of such a notice or invitation, in the consultation documents (Article R. 2142-1 of the CCP).

In the case of concessions, the criteria for the selection of bidders are specified in the concession notice or, in the absence of such a notice, in another tender document (Article R. 3123-5 of the CCP).

Criteria for the Evaluation of Tenders

In the case of public contracts, the criteria for the evaluation of tenders are specified in the tender documents (Article R. 2152-11 of the CCP).

In the case of concessions, the criteria for the evaluation of tenders and their description are indicated in the concession notice, in the invitation to tender or in any other tender document (Article R. 3124-4 of the CCP).

The contracting authority or entity must immediately inform unsuccessful candidates of its decision to reject their request to participate (Articles R. 2181-1 and R. 3125-1 of the CCP).

For public contracts whose value is between EUR40,000 and the European thresholds, and for concessions below the European threshold, unsuccessful candidates must submit a request to the contracting authority or entity to obtain the reasons for their rejection. The contracting authority or entity must respond within 15 days of receiving their request (Articles R. 2181-2 and R. 3126-12 of the CCP).

For public contracts and concessions above the European threshold, the notification of rejection of the request to participate must include the reasons for the rejection (Articles R. 2181-3 and R. 3125-1 of the CCP).

Notifications are made according to the transmission methods specific to the awarding procedure. They are generally sent electronically.

For public contracts whose value is between EUR40,000 and the European thresholds, unsuccessful bidders must submit a request to the contracting authority or entity to obtain the reasons for their tender not being selected. The contracting authority or entity must respond within 15 days of receiving their request. If their tender was not rejected for being irregular, unsuitable or unacceptable, the contracting authority or entity must also inform them of the characteristics and advantages of the successful tender and the name of the successful bidder (Article R. 2181-2 of the CCP).

For concessions below the European threshold, unsuccessful bidders must submit a request to the contracting authority or entity to find out why their tender was not selected and the name of the successful bidder. The contracting authority must provide this information within 15 days of receiving their request (Article R. 3126-12 of the CCP).

For public contracts and concessions above the European threshold, the contracting authority must inform the unsuccessful bidders, in addition to the reasons for the rejection of their tenders, of the name of the successful bidder and the reasons why their tender was selected, as well as the date on which the contract is expected to be concluded (Articles R. 2181-3 and R. 3125-1 of the CCP). Unsuccessful bidders whose tenders were not rejected because they were irregular, unacceptable (only in the case of public contracts) or unsuitable may also request the contracting authority send them the characteristics and advantages of the successful tender. The contracting authority must provide this information as soon as possible, and no later than 15 days after receiving their request (Articles R. 2181-4 and R. 3125-3 of the CCP).

Notifications are made according to the transmission methods specific to the awarding procedure. They are generally sent electronically.

There is no obligation to grant bidders a prior hearing before a decision is taken in an awarding procedure per se.

However, economic operators have the right to “self-clean” if they fall under one of the mandatory or discretionary grounds for exclusion (Articles L. 2141-6-1, L. 2141-11, L. 3123-6-1 and L. 3123-11 of the CCP) (see 2.8 Eligibility for Participation in a Procurement Process).

In the context of a restricted or open procedure, the contracting authority or entity may request bidders to clarify the content of their tender (Articles R. 2161-5 and R. 2161-11 of the CCP), provided that the contracting authority or entity and the bidder do not negotiate the tender. In the context of a competitive dialogue, the contracting authority or entity may request details, clarifications, improvements or additions to their final tender from bidders. These requests may not have the effect of modifying the essential aspects of the tender (Article R. 2161-29 of the CCP).

For public contracts and concessions above the European threshold, a minimum period of 11 days must elapse between the date of the notification described in 3.3 Obligation to Notify Bidders of a Contract Award Decision and the date on which the contract is concluded. The “standstill period” is extended to 16 days if the notification is not sent electronically.

Compliance with the “standstill period” is not required when the contract is awarded to the sole economic operator who took part in the awarding procedure (Articles R. 2182-1, R. 2182-2 and R. 3125-2 of the CCP).

There is no “standstill period” for public contracts and concessions below the European threshold.

A distinction must be made depending on whether the contract governed by the CCP is an administrative or a private law contract.

Administrative Contracts

Administrative courts have jurisdiction in disputes relating to administrative contracts.

In the case of summary proceedings (référé précontractuel, référé contractuel), the review body is the president (or a judge appointed within the court) of the locally competent administrative court of first instance (Articles L. 551-1 et seq and L. 551-13 et seq of the CJA). An appeal may then be filed with the highest French administrative court (the Conseil d’Etat).

An action challenging the validity of an administrative contract or a claim for compensation for damage suffered as a result of a breach by the contracting authority or entity during the awarding procedure may be brought before the locally competent administrative court of first instance. A review may be filed with the locally competent administrative court of appeal. Ultimately, the Conseil d’Etat has jurisdiction to rule on the decisions of the administrative courts of appeal.

Private Law Contracts

Judicial courts have jurisdiction in disputes relating to private law contracts.

In the case of summary proceedings (référé précontractuel, référé contractuel), the review body is the president (or a judge appointed within the court) of the competent judicial court (Article R. 213-5-1 of the COJ). Thereafter, an appeal may be filed with the highest French judicial court (the Cour de cassation).

A third party cannot challenge the validity of a public contract or a concession governed by private law before a judicial court.

However, a claim for compensation for damage suffered as a result of a breach by the contracting authority or entity during the awarding procedure may be brought before the competent judicial court of first instance. A review may be filed with the competent court of appeal. Ultimately, the Cour de cassation has jurisdiction to rule on the decisions of the courts of appeal.

Summary Proceedings

There are two types of summary proceedings. The proceedings that will be used depend on whether or not the contract has been concluded.

• If the contract has not been concluded, an appeal may be filed on the grounds of a breach of free access to public procurement and equal treatment (référé précontractuel). The judge may order the contracting authority or entity to comply with these obligations or annul the decisions relating to the awarding of the contract (Article L. 551-1 et seq of the CJA; Article 2 et seq of Ordinance No 2009-515).
• If the contract has been concluded, an appeal may be filed for a limited number of breaches, such as the total absence of prior publication or a violation of the “standstill period” (référé contractuel). The judge may reduce the duration of the contract, impose a financial penalty, order the contract to be terminated or declare it null and void (Article L. 551-13 et seq of the CJA; Article 11 et seq of Ordinance No 2009-515).

Summary appeals may be filed with the administrative courts, if the contract is an administrative contract, or with the judicial courts, if the contract is governed by private law.

Challenging the Validity of a Contract

If a public contract or a concession is an administrative contract, third parties to the contract may file an appeal challenging its validity (review procedure opened by French administrative case law concerning administrative contracts only: CE, Ass., 4 April 2014, Département de Tarn-et-Garonne, No 358994). The claimant may only rely on breaches which are directly related to the interest they claim has been harmed, or those of a certain seriousness.

They may, for example, invoke breaches committed by the contracting authority or entity during the awarding procedure. The judge has wide powers. They may order the parties to regularise the contract or, if regularisation is not possible, order its termination or annulment. In practice, termination or annulment of the contract is rare.

Claim for Compensation

A claim for compensation for damage suffered as a result of a breach by the contracting authority or entity during the awarding procedure may be brought before administrative courts if the contract is an administrative contract or before judicial courts if the contract is governed by private law. The claimant must demonstrate a fault committed by the contracting authority or entity, the damage suffered and a causal link between the fault and the damage. The amount of compensation depends on whether the claimant had a serious chance of being awarded the contract.

The following considerations apply to both administrative and private law contracts.

In the case of a summary appeal filed before the conclusion of a contract (référé précontractuel), an appeal to the court automatically suspends the awarding procedure. The contract may not be concluded from the time the appeal is filed until the judge has made their decision (Article L. 551-4 of the CJA; Article 4 of Ordinance No 2009-515).

In the case of a summary appeal filed after the conclusion of a contract (référé contractuel), an appeal to the court has no automatic suspensive effect. However, it is possible to apply for interim measures. The judge may even decide spontaneously to suspend the performance of the contract, for the duration of the proceedings, unless they consider, given all the interests likely to be affected and in particular the public interest, that the disadvantages of this measure could prevail over its advantages (Articles L. 551-17 and L. 551-21 of the CJA; Articles 15 and 19 of Ordinance No 2009-515).

Summary Proceedings

Anyone who has an interest in concluding the contract and who is likely to be harmed by a breach of free access to public procurement and equal treatment by the contracting authority or entity may file an appeal. In the case of a contract concluded by a local authority or a local public body, the locally competent prefect may also file appeals.

Challenging the Validity of a Contract

Anyone whose interests are likely to be harmed in a sufficiently direct and certain manner by the contract or its clauses has standing to challenge the validity of an administrative contract. When the contract is concluded by a local authority, the locally competent prefect and the members of the deliberative body of the local authority may also file an appeal.

Claim for Compensation

Unsuccessful candidates or candidates who have been deterred or prevented from submitting a tender as a result of a breach by the contracting authority or entity may claim for compensation.

The applicable time limit depends on the type of appeal filed by the claimant.

• Summary appeal before the conclusion of a contract (référé précontractuel): the appeal must be filed before the contract is signed, ie, usually before the “standstill period” expires.
• Summary appeal after the conclusion of a contract (référé contractuel): the appeal must be filed within 31 days of the publication or notification of the award of the contract, or within six months of the conclusion of the contract if neither the contract award notice has been published nor the award of the contract has been notified (Article R. 551-7 of the CJA; Article 1441-3 of the CPC).

• Appeal challenging the validity of an administrative contract (Tarn-et-Garonne review): the appeal must be filed within two months of the completion of the appropriate publication measures by the contracting authority or entity.

• Claim for compensation brought before the administrative courts: the action must be brought after a prior claim for compensation has been made with the contracting authority or entity and within a period of four years, starting from January 1 of the year following the date on which the damage was suffered (Article 1 of Law No 68-1250).
• Claim for compensation brought before the judicial courts: the time limit is five years from the date on which the damage was suffered (Article 2224 of the French Civil Code).

In the case of a summary appeal filed with the administrative or judicial courts before the conclusion of a contract (référé précontractuel), the judge of first instance must in principle rule within 20 days (Article R. 551-5 of the CJA; Article 1441-2 of the CCP).

In the case of a summary appeal filed with the administrative or judicial courts after the conclusion of a contract (référé contractuel), the judge of first instance must in principle rule within one month (Article R. 551-9 of the CJA; Article 1441-3 of the CCP).

In the case of an appeal challenging the validity of an administrative contract (Tarn-et-Garonne review) and a claim for compensation brought before the administrative courts, there is no specific time limit for the ruling. The timeframe depends on the usual processing times before the administrative courts, namely ten months before the administrative courts of first instance and the administrative courts of appeal, and six months before the Conseil d’Etat.

The total length of proceedings may therefore theoretically exceed two years. The same applies to claims for compensation brought before the judicial courts.

The most recent statistics available from the administrative courts relate to the year 2022. In that year, 5,342 cases relating to public procurement were brought before the administrative courts of first instance, 698 before the administrative courts of appeal and 228 before the Conseil d’Etat.

No statistics are available on public procurement disputes brought before the judicial courts in relation to private law contracts.

There are no fees for bringing an action before an administrative or judicial court per se.

However, certain fees may be incurred.

• Fees related to the proceedings (dépens), which may include the fees of experts and the costs of investigative measures ordered by the judge.
• Fees not related to the proceedings (frais irrépétibles), which are advanced by each party to the dispute and mainly cover lawyers’ fees.

As a general rule, fees that are not related to the proceedings are borne by the losing party. However, both administrative and judicial judges may decide to charge them to another party, or to share them between the parties (Article R. 761-1 of the CJA; Article 696 of the CCP).

In addition, the party ordered to pay the fees related to the proceedings, or, failing that, the losing party, may also be ordered to pay the fees incurred by the opposing party which are not related to the proceedings (Article L. 761-1 of the CJA; Article 700 of the CCP).

Articles R. 2194-1 et seq and R. 3135-1 et seq of the CCP specify the cases in which public contracts and concessions may be modified during their term.

In essence, a public contract or a concession may be modified when:

• the modifications, irrespective of their value, have been provided for in the initial procurement documents in clear, precise and unequivocal review clauses or options;
• additional works, services or supplies have become necessary and were not included in the initial contract, provided that a change of co-contractor is impossible for economic or technical reasons, and the value of the modification does not exceed 50% of the value of the original contract;
• the modification is made necessary by circumstances which a diligent contracting authority or entity could not foresee, provided that the value of the modification does not exceed 50% of the value of the original contract;
• a new contractor replaces the original contractor as a consequence of either: (i) a clear, precise and unequivocal review clause or option; or (ii) in the case of an assignment of the contract, following a corporate restructuring of the original contractor;
• the modification is not substantial, the cases of substantial modifications being those referred to in Articles R. 2194-7 and R. 3135-7 of the CCP; and
• the value of the modification is below: (i) the European thresholds; and (ii) 10% of the value of the original contract in the case of service or supply contracts, 15% of the value of the original contract in the case of works contracts, or 10% of the value of the original contract in the case of concessions.

These modifications may not, in any case, change the overall nature of the contract.

The CCP provides specific grounds for termination of the contract by the contracting authority or entity (Articles L. 2195-1 et seq and L. 3136-1 et seq of the CCP).

The contracting authority or entity may terminate the contract:

• in the event of force majeure;
• if the contract if administrative, in the event of a sufficiently serious fault on the part of the contractor or for a reason of general interest;
• if the contractor falls under one of the mandatory or discretionary grounds for exclusion (see 2.8 Eligibility for Participation in a Procurement Process);
• if the contract should not have been awarded due to a serious breach of obligations under EU law; or
• if the contract cannot be performed without a modification contrary to the provisions of the CCP (see 5.1 Modification of Contracts After the Award).

The contract may also provide for termination at the initiative of either party. In the case of administrative contracts, the contracting authorities or entities may refer to the General Conditions of Contract (Cahiers des clauses administratives générales), which contain standardised clauses for the termination of the contract at the initiative of the contracting authority, entity or contractor.

For contracts which are administrative contracts, the contracting authority or entity has special prerogatives, listed in Article L. 6 of the CCP.

• The contracting authority or entity exercises control over the performance of the contract, in particular by issuing service orders.
• The contracting authority or entity may unilaterally modify the contract, provided that it does not disrupt the economic balance of the contract. The contractor is entitled to compensation subject to the stipulations of the contract.
• The contracting authority or entity may unilaterally terminate the contract (see 5.2 Termination of Contracts). If termination is in the public interest, the contractor is entitled to compensation, subject to the stipulations of the contract.

In addition to these three prerogatives, the contracting authority or entity also has the power to impose penalties on contractors who fail to meet their obligations. These may take the form of financial or coercive penalties, up to and including termination of the contract. Penalties may only be imposed after formal notice has been given and must be proportionate.

In a decision dated 22 October 2024 (Kolin Inşaat Turizm Sanayi ve Ticaret AȘ, no. C-652/22), the Court of Justice of the European Union, applying Regulation (EU) 2022/1031, confirmed that economic operators from third countries that have not concluded a free trade agreement with the EU do not have guaranteed access to public procurement procedures and may be excluded from them. This decision reinforces the position of the French government, as the CCP already made it possible to exclude tenders from economic operators from third countries (see 1.4 Openness and International Competition).

In a decision dated 24 April 2024 (no. 472038), the Conseil d’Etat clarified the conditions of compensation for a candidate unlawfully excluded from an awarding procedure where the contract was terminated by the contracting authority. In this case, in order to assess the direct nature of the alleged damage, it is necessary to take the reasons for and the effects of the termination into account, in order to determine what rights to compensation the excluded candidate would have had if the contract had been concluded with them and if its termination had been pronounced for the same reasons as the termination of the irregularly concluded contract.

In a decision dated 16 February 2024 (no. 488524), the Conseil d’Etat, relying on the provisions of Article 57 of Directive 2014/24/EU, clarified that the contracting authority may not take acts committed more than three years ago into account in order to exclude an economic operator who, in the context of recent public procurement procedures, may be considered to have attempted to influence the decision of the contracting authority or entity, from an awarding procedure.

The bill to simplify economic life, which is currently under discussion in the French National Assembly, includes a number of measures relating to public procurement.

With the aim of facilitating access to public contracts for small and medium-sized enterprises (SMEs), the bill provides for:

• all public bodies (with the notable exception of local authorities and public local bodies) and social security bodies to use the State’s e-procurement platform from 31 December 2028; and

• a permanent exemption from prior publication and competitive tendering for works contracts with a value below EUR100,000.

The bill also clarifies the definition of innovative public contracts. It includes contracts for works, supplies or services that take their energy and environmental impact into account and contracts for works, supplies or services that give priority to the use of second-hand, reused and recycled materials.

Successive changes of government in France in recent months have delayed the examination of the bill. It should nevertheless be voted on and promulgated before the summer of 2025.