Council of State Clarifies the Content of Negotiations in Concession Award Procedures
Paris, February 12, 2025
In a recent judgment, the Council of State has provided guidance on the scope and content of negotiations in concession award procedures. This decision is significant as it clarifies the boundaries of the contracting authorities’ discretion in conducting such negotiations.
Background
Concessions are long-term contracts through which public authorities grant exclusive rights to a private entity for the operation and management of public services or infrastructure. The award of concessions is subject to specific procurement rules, including the requirement for negotiations between the contracting authority and the tenderers.
Key Points of the Judgment
The Council of State’s judgment establishes the following principles:
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Purpose of Negotiations: Negotiations aim to improve the technical and economic parameters of the tender, optimize the allocation of risks, and ensure the best possible value for money for the public authority.
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Scope of Negotiations: Negotiations can cover all aspects of the tender proposal, including its technical specifications, contractual terms, and financial conditions. However, they cannot fundamentally alter the nature or scope of the concession.
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Discretion of the Contracting Authority: The contracting authority retains discretion to determine the extent and depth of negotiations. However, this discretion is not absolute and must be exercised within the limits of the law and the principles of transparency and equal treatment.
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Duty of Transparency: The contracting authority must provide clear and comprehensive information to all tenderers regarding the scope and objectives of the negotiations. This information should include the criteria that will be used to evaluate the revised proposals.
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Fairness and Impartiality: Negotiations must be conducted in a fair and impartial manner, ensuring that all tenderers have an equal opportunity to improve their proposals.
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Limits to Negotiations: Negotiations cannot lead to a fundamental change in the ranking of the tenderers or result in a material deviation from the initial tender criteria.
Implications for Contracting Authorities
This judgment provides valuable guidance to contracting authorities involved in concession award procedures. By adhering to the principles outlined by the Council of State, authorities can ensure the integrity and transparency of the procurement process.
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Clear Scope and Objectives: Contracting authorities should define the scope and objectives of the negotiations precisely and communicate them clearly to all tenderers.
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Avoid Fundamental Changes: Negotiations should not fundamentally alter the nature of the concession or the ranking of the tenderers.
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Transparency and Fairness: Authorities must provide transparent information about the negotiation process and ensure that all tenderers have equal opportunities to improve their proposals.
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Evaluation Criteria: The criteria used to evaluate revised proposals should be objective, transparent, and aligned with the initial tender requirements.
Conclusion
The Council of State’s judgment provides much-needed clarity on the content and conduct of negotiations in concession award procedures. By adhering to the principles outlined in the judgment, contracting authorities can ensure that procurement processes are fair, transparent, and effective in delivering the best possible value for public money.
Lettre de la DAJ – Le Conseil d’État précise le contenu de la négociation dans le cadre de la procédure de passation d’une concession
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