Criteria for Awarding Public Contracts and the Green Criterion
Posté le 19 December 2024 dans Public law.
Public contracts in France are awarded based on objective, precise criteria related to the purpose of the contract, as defined by the Public Procurement Code and case law. These criteria include price and qualitative, environmental, or social aspects.
Since the enactment of the law on August 22, 2021, the environmental criterion is mandatory in public procurement. At least one criterion must address the environmental characteristics of the bid (Article L. 2152-7). This criterion, validated by European and French case law, must remain objective and precise, directly linked to the purpose of the contract, and consistent with principles of non-discrimination and transparency.
Public procurement must reconcile adherence to competition principles with qualitative criteria, including environmental considerations. The challenge lies in balancing cost, quality, and ecological requirements.
I. Criteria for Awarding Public Contracts
The criteria for awarding public contracts in France are outlined in various provisions of the Public Procurement Code and case law. Contracts are awarded to the bidder presenting the most economically advantageous offer based on objective, precise criteria linked to the purpose of the contract or its execution conditions. These criteria may include price or cost, as well as qualitative, environmental, or social factors.
According to Article R. 2152-12 of the Public Procurement Code and case law, the criteria must be weighted in formalized procedures, or, if weighting is not feasible for objective reasons, ranked in descending order of importance. Weighting can be expressed as a range with an appropriate maximum variation. The criteria and their implementation methods must be detailed in the consultation documents.
Article R. 2152-11 of the same code specifies that the criteria and their implementation methods must be outlined in the consultation documents. Additionally, contracting authorities must inform bidders about the weighting or prioritization of criteria and sub-criteria when these may influence how bids are prepared.
Case law further emphasizes that the criteria used must be justified by the purpose of the contract and should not lack relevance, as this would breach the principles of open access to public procurement and procedural transparency.
Award criteria must not give the buyer unlimited discretion and should ensure genuine competition. Compliance with competition rules in public procurement is governed by several principles and legal provisions in French law. Article L. 3 of the Public Procurement Code (CCP) outlines the general principles of public procurement: open access, equal treatment of candidates, and procedural transparency. These principles aim to ensure fair and undistorted competition in awarding public contracts.
Anti-competitive practices, such as collusion and abuse of dominant position, are strictly prohibited. Article L. 420-1 of the French Commercial Code and Article 101 of the Treaty on the Functioning of the European Union (TFEU) prohibit agreements that distort competition. Similarly, Article L. 420-2 of the French Commercial Code and Article 102 of the TFEU address abuses of dominant positions.
In cases of non-compliance with advertising and competitive bidding obligations, legal remedies may be pursued. Procedure-specific thresholds for supply, service, and works contracts are also defined to ensure adequate competition.
Thus, compliance with competition rules in public procurement relies on rigorously applying principles of open access, equal treatment, and transparency, alongside preventing and penalizing anti-competitive practices.
II. The Green Criterion
The green criterion in public procurement has become a legal requirement in France. Article L. 2152-7 of the Public Procurement Code mandates that at least one award criterion considers the environmental characteristics of the bid. This provision was introduced by the law of August 22, 2021, aimed at promoting responsible public procurement.
The European Court of Justice (ECJ), in the Concordia Bus Finland case (ECJ, September 17, 2002, Case C-513/99), validated the consideration of ecological criteria, provided they are linked to the purpose of the contract, do not grant the contracting authority unrestricted discretion, are mentioned in the tender documents, and adhere to fundamental EU law principles, including non-discrimination.
The French Council of State has also emphasized that these new provisions do not exempt authorities from choosing the most economically advantageous offer. Award criteria must remain objective, precise, and tied to the purpose of the contract or its execution conditions (CE, February 4, 2021, advisory opinion, no. 401933).
Therefore, the green criterion is integrated into the broader framework of public procurement award criteria, which may include qualitative, environmental, or social aspects in addition to price or cost.
Applying the green criterion in works, supply, or service contracts presents multiple challenges. First, justifying environmental criteria in relation to the contract’s purpose can be difficult. Articles L. 2152-7 and R. 2152-7 of the Public Procurement Code require criteria to be directly linked to the contract’s purpose. Failure to establish this link may lead to significant legal risks, as highlighted by the Administrative Court of Versailles, which ruled that using criteria unrelated to the contract violates principles of open access and procedural transparency.
Additionally, excessive weighting of price at the expense of quality, including environmental criteria, poses another challenge. The tendency to prioritize the lowest price is deeply ingrained in public procurement practices, particularly within local authorities, and is exacerbated by often-constrained financial contexts. This can lead to execution difficulties.
The law firm LBV AVOCATS remains at your disposal to assist you with your procedures, offering legal support for public tenders both to local authorities and businesses.
Documentation :
Décret n° 2016-360 du 25 mars 2016 relatif aux marchés publics
Cour administrative d’appel Bordeaux, 3e chambre, 07/11/2023, n°21BX03579, n°23219