Faced with perpetual new challenges and constantly evolving standards and practices, the public sector, which is highly codified, must regularly update its reference documents. The new General Conditions of Contract (Cahier des clauses administratives générales) published in the Journal Officiel on 1 April 2021, and made unique by the repeal of the old Cahier des clauses administratives générales from 30 September 2021, have been updated to take account of changes in case law since 2009 and to incorporate the various recent directives relating to public procurement.
The GCC: a necessary update
A GCC is a document that determines the rights and obligations of the contracting parties throughout the life of the contract.
It sets out the contractual elements of a contract, such as the deadline for performance, sub-contracting, guarantees and insurance, price and payment, penalties, dispute settlement, etc.
According to article R. 2112-2 of the French Public Procurement Code (CCP), the GCCs "set out the administrative provisions applicable to a category of contracts".
Drafted by the DAJ (Direction des Affaires Juridiques) of Bercy and approved by decree, the purchaser is free to refer to them or to depart from them, in which case he must specify his own provisions.
Since 1 April 2021, there have been six GCCs:
- Current supplies and services
- Industrial markets
- Information and communication technology
- Intellectual services
- Work
- Project management
Find out more here.
These GCCs have just been updated for a number of reasons, in particular :
- greater efficiency in sustainable public procurement;
- promote access to public contracts for SMEs ;
- adapting to the digital age ;
- incorporate certain regulatory and administrative clarifications;
- include the dematerialisation of execution and invoicing;
- clarify the obligations under the RGPD (processing of personal data);
- promote sustainable development and integration ;
- fixing intellectual property ;
- use the COVID clause to anticipate any unforeseeable circumstances (suspension or continuation of services, conditions for examining the financial consequences, etc.);
- modifying financial execution (options for advances, incentive clauses, caps on penalties, progress and financial performance bonuses, etc.)...
By incorporating concepts such as COVID, the needs of SMEs and ecology, the updated GCCs are more in line with the concerns that will increasingly govern public sector projects. However, everyone involved in a public procurement contract needs to be aware of these issues, and the updated GCCs are there to support them.
Purchasers (contracting authorities and entities) and the GCCs
The highly regulated field of public procurement imposes rules throughout the process. Buyers therefore need to clarify their purchasing conditions, while complying with the standards and the public procurement code. To this end, here are five rules to follow when submitting contracts, taking into account, of course, the recasting of the CCAGs.
1. Refer to these new GCC OR continue to refer to the old ones, at least until 30 September 2021. After that, you must refer to them expressly! During this transitional period and in the absence of
clarifications in the consultation documents, the old version of
2009, will apply.
2. Comply with the OBLIGATION to include the list of derogations from the GCC in the
within the last article of the CCAP (Cahier des clauses administratives
particular).
3. Do not forget the prohibition on referring to several GCCs, except for global contracts. For example, a design-build contract may
refer to the CCAGs for works and project management.
4. Remember to update the order of priority of the contractual documents.
5. Implement fairer and more attractive performance and financial conditions, while incorporating ever more sustainable development and encouraging social inclusion, without ever losing sight of the purpose of the contract.
The 2021 version of the GCC encourages dialogue with companies
But that's not all! This revision of the GCC also details the
These are just some of the opportunities that can be seized to improve the quality of your business.
procedures.
Companies (economic operators)
Candidates for public procurement contracts must also be vigilant on a number of points, and in particular connect the challenges of the contract with the reality of their company as well as with social issues. Here are five rules to follow when bidding for contracts, taking into account, of course, the overhaul of the General Conditions of Contract.
1. Highlight environmental initiatives (transport, packaging, waste management, etc.);
2. If you haven't already done so, encourage social integration by getting in touch with specialist organisations;
3. Position themselves in a more reassured position, knowing that the new system for enforcing late payment penalties is more favourable (compliance with performance deadlines, application of late payment penalties, etc.);
4. Use the Chorus Pro portal to send invoices electronically, in accordance with the terms of the CCP ;
5. Familiarise yourself with the new GCC.
The case of project management contracts
Until this year, project management contracts were subject to the CCAG applicable to intellectual services. This is no longer the case.
The latest CCAG MOE is an effective, functional and relevant tool available to project managers and contracting authorities for architectural assignments, new construction, refurbishment of a building or infrastructure structure, and also for contracts for diagnostic services and technical studies, even outside the scope of a works project.
The CCAG MOE recalls, among other things:
- the main contractor's insurance obligations and reporting requirements ;
- the rules concerning the project management consortium (the lead contractor will be jointly and severally liable only if this is expressly stipulated)-;
- the balance of the contract (final, general and definitive breakdown) ;
- the extension of the construction period and its consequences...
These GCCs, which are easier to use, continue to promote access to contracts for VSEs and SMEs, highlight social, sustainable and environmental purchasing and seek to rebalance relations between the players.
