Public procurement : Communications from the Ministry of Mobility and Public Works

In two communications dated 27 August 2021, the Ministry of Mobility and Public Works :

1) reiterated its recommendation of 9/07/21 for contracting authorities not to apply penalties and to adjust completion deadlines due to shortage conditions for certain materials, if not the very significant rise in prices for the latter.

2) recommended that contracting authorities grant advances to construction companies facing liquidity problems, on presentation of supporting documents, via an accelerated procedure developed by the CRTI-B, based on a calculation method based on a German index series from the DESTATIS organisation;

Although the second memo expressly states that this is not a market adaptation, a quick ‘duck test’ leads to the opposite conclusion, particularly given the validation of the supporting documents submitted.

Legally, the classification of “advances” also seems particularly dubious, given that article 46 of the law on public contracts stipulates that they must 1) be stipulated in the contract, 2) be accompanied by appropriate guarantees.

However laudable, it is not certain that this “procedure” will reassure contractors faced with these price increases.