1. Who must apply the public procurement code?
1.1. Public persons subject to the public procurement code.
Article 2 of the code indicates precisely who is subject to the code: the State and its public establishments other than public industrial and commercial establishments (EPIC) as well as local authorities and their public establishments.
1.2. Bodies not subject to the public procurement code but subject to community directives.
It is important to take into account the situation of certain bodies which, although not subject to the public procurement code, may be subject to competition obligations imposed by Community directives. This concerns in particular certain State EPICs, certain public interest groupings (GIP) or economic interest groupings (GIE) and certain associations insofar as these bodies meet the definition of “contracting authority” within the meaning of law. community.
Indeed, community directives for the coordination of public procurement procedures have a wider scope than that of the code and may concern public persons not subject to the public contracts code or private persons. The provisions of the directives are transposed, for persons not subject to the public procurement code, by law n ° 91-3 of 3 January 1991 relating to the transparency and regularity of procurement procedures amended by law n ° 2001- 1168 of December 11, 2001, known as the MURCEF law, and by law n ° 92-1282 of December 11, 1992 relating to the procedures for awarding certain contracts in the water, energy and transport sectors.
The scope of these legislative provisions is defined respectively in article 9 of the law of January 3, 1991 and in article 1 of the aforementioned law of December 11, 1992. The following are thus concerned:
– private law groups formed between public authorities (eg: certain EIGs or associations);
– the Bank of France;
– private law bodies, public establishments of an industrial and commercial nature of the State, public interest groups, satisfying a need of general interest other than industrial and commercial and meeting one of the following conditions:
– have their activity financed mainly and on a permanent basis by the State, local authorities, public establishments other than those having an industrial and commercial character or even private law bodies, public establishments of an industrial or commercial nature. the State or public interest groups, satisfying a need of general interest other than industrial or commercial;
– be subject to management control by one of the bodies mentioned above;
– include an administrative, management or supervisory body composed mainly of members appointed by the bodies mentioned above.
Bodies which meet a need of general interest other than industrial and commercial and which meet at least one of the conditions listed above are therefore required, above the Community thresholds, to comply with the rules on advertising and competitive tendering provided for by community directives as transposed into the law of 3 January 1991 or, for special sectors, in the law of 11 December 1992.
1.3. Private persons subject to the code.
In principle, private persons do not fall within the scope of the public procurement code. However, if a private person is an agent of a public person subject to the code, he must, for contracts awarded in execution of this mandate, comply with the provisions of the market code.