Increase Transparency in Public Procurement (FR0004)
Action Plan: France, First Action Plan, 2015-2017
Action Plan Cycle: 2015
Lead Institution: Prime Minister’s Office; Ministry of Finance and Public Accounts; Ministry of the Economy, Industry and the Digital Sector
Support Institution(s): NA
Policy AreasAccess to Information, Anti Corruption and Integrity, Democratizing Decision-Making, Open Contracting and Public Procurement, Open Data, Public Procurement, Regulatory Governance
STAKES According to data collected by the public procurement economic monitoring center, the amount spent on public contracts was €71.5 billion in 20134. The transparency and proper management of public procurement are essential issues for France. They are mentioned in the January 29th, 1993 Bill on the prevention of corruption and transparency in economic life and public procedures ("Loi Sapin") and in the Public Procurement Code5(CMP). From its first article, this code makes transparency one of the three fundamental principles governing public procurement.
• The advertising of public calls for tenders is covered by provisions of articles 26 and 40 of the CMP which includes the obligation of publishing public call for tenders for amounts over €90,0006, either in the Official Bulletin of Public Contract Declarations (BOAMP) or in a journal authorized to receive legal declarations, as well as on its buyer profile.
• Disclosure on awarded public tenders is covered by the provisions of articles 85, 131 and 133 of the CMP.
CONTEXT & AIM
A public procurement economic monitoring center, under the responsibility of the Ministry of
Economy and Public Finance, was created in order to collect and analyze data on economic and technical aspects of public procurement and to constitute a permanent body for consultation and exchange of information with economic operators. Some data on awarded tenders is already available in open data on http://www.data.gouv.fr (notably data published by the State Procurement Service7 or by certain local and regional authorities), but this only gives a very partial view of whole public procurement. This transparency must be further improved: in fact, it is as much an issue of accountability, demonstrating the proper management of public funds, as an economic issue, facilitating the fair access of companies to public procurement, and an issue of the public action efficiency, allowing better control of this policy by public managers. The transposition of three European directives between now and April 2016 8(two directives on public procurement and one directive on concession contracts) will improve this transparency. The directive 2014/24/EU on public procurement specifies the mandatory dematerialization of procedures above European thresholds. Electronic dispatch of notices to be published and online access to calls for tenders documents are already in effect since 2006. In January 2015, the economic and financial ministries have undertaken a public consultation on the draft ruling transposing the legislative chapter of the "public contracts" directives9. Lastly, more resources can be made available through public procurement by publishing open data collected during the execution of contracts awarded by public administrations, taking into account specific conditions applying to the fields of defense and national security.
• Standardize the format of data of public call for tenders
• Release in open data the Official Bulletin of Public Contract Declarations (BOAMP) or those from other publication entities, and publish buyers profiles
• Encourage increased publicity of awarded public tenders
- Make this publication mandatory for tenders above regulation thresholds. Encourage and support buyers to do it also for tenders below regulation threshold and to make buyers profiles accessible.
- Promote open data, particularly by standardizing advertising forms and presenting them in machine readable formats. Data to be opened in priority will be selected after a study phase that will not exceed one year
• Include open data clauses in contracts awarded by public authorities
IRM End of Term Status Summary
✪2. Increase transparency in public procurement
· Standardize the format of data of public call for tenders
· Release in open data the Official Bulletin of Public Contract Declarations (BOAMP) or those from other publication entities, and publish buyers profiles.
· Encourage increased publicity of awarded public tenders
o Make this publication mandatory for tenders above regulation thresholds. Encourage and support buyers to do it also for tenders below regulation threshold and to make buyers profiles accessible.
o Promote open data, particularly by standardizing advertising forms and presenting them in machine readable formats. Data to be opened in priority will be selected after a study phase that will not exceed one year.
· Include open data clauses in contracts awarded by public authorities
o Encourage service providers to open data produced during the execution of a contract by defining standard open data clauses specifying the requirements and that public authorities could include in contracts.
Responsible Institutions: Prime Minister's Office; Ministry of Finance and Public Accounts; and Ministry of the Economy, Industry and the Digital Sector
Supporting Institution(s): N/A
Start Date: Not specified
End Date: Not specified
This commitment aimed to improve transparency in public procurement. Though the government has already established a public procurement economic monitoring centre to oversee collection and analysis of data, not all territories have equal access to the data and knowledge around public procurement. According to a 2013 Senate report, this knowledge gap prevents private companies from developing implementation strategies because the data they would need to do so is either incomplete, unreliable, or not current.
According to the Deposits and Consignments Fund (Caisse des dépôts) and the Association of French local authorities (Assemblée des communautés de France), in 2016, €72 billion was spent on public procurement, out of which €39 billion was spent by local governments.[Note27: AdCF and Caisse des dépôts, Baromètre de la commande Publique 2012 -2016 (Feb. 2017), http://www.adcf.org/files/DOCS/Note-synthese-AdCF-CDC-21fev2017.pdf. Given the amount of public funds spent on public contracts and the potential of public procurement for the economic development of local territories, access to information about procurement processes, open calls, and awarded tenders is particularly important. This commitment aimed to build on the existing legal framework, including the 1993 Loi Sapin and the Public procurement code, European directives (including directive 2014/24/EU), as well as local initiatives such as development in the Bretagne region and the city of Paris.
This commitment sought to: (i) standardise the call for tender and make them more transparent and fair for potential bidders; (ii) improve transparency about buyers and awarded contracts to increase public access to information regarding the use of public funds; and (iii) systematise the opening of information through the inclusion of an open data clause in contracts awarded by public authorities.
The implementation of this commitment was limited at the time of the midterm. Only one commitment activity, concerning the release of public contractor declarations in open data, was coded as substantially completed.
Using the pilot program developed by the region of Bretagne, a frame of reference to standardise the format of public calls for tenders was published on data.gouv.fr in May 2016, following a BarCamp organised by Etalab and the Bretagne region. The BarCamp was held to create national procurement-specific data standards compatible with French law and international standards. To be considered complete, the pilot frame of reference needed to be proven as compatible with national and local data and procedures, and existing public procurement data needed to be transferred to the new format.
Executive order n° 2015-899 was published on the official gazette on 24 July 2015. It requires all information relating to public procurement to be published in open data format. The information contained in the Official Bulletin of Public Contract Declarations (BOAMP) is published on data.gouv.fr. The midterm IRM assessment notes that the data was previously accessible through a payable license that is scheduled to be abolished with the adoption of the Digital Republic Law.
Implementation of the third commitment activity on the publicity of awarded contracts was coded as limited, as the standardisation method was still being tested and implementation was uneven across regions.
Following the example of the city of Paris, the central government aims to require entities, who receive public contracts, publish certain data about the execution of the contract. This commitment is featured in Article 8 of the Digital Republic Law, which had not been adopted at the time of the midterm assessment. For more information, please see the IRM midterm report.[Note28: Independent Reporting Mechanism, France Rapport D'ètape (OGP, 2017), https://www.opengovpartnership.org/wp-content/uploads/2001/01/France_Progress-Report_2015-2017.pdf.]
End of Term: Substantial
The overall completion of this commitment is considered to be substantial at the end of term. The government has taken steps toward opening data in public procurement since the beginning of the two-year implementation period, a number of laws and decrees have indeed contributed to digitising public procurement procedures and increased their transparency. The commitment is expected to be fully implemented by October 2018. A government spokesperson informed the IRM researcher that the government remained committed to further improve the transparency of public procurement and that dialogue was ongoing among relevant administrations.[Note29: Etalab team, personal communication with the IRM researcher, 23 Oct. 2017.] However, there is no publicly available data tracing this interagency dialogue.
The adoption of the Digital Republic Law n° 2016-1321 in October 2016 marks an advancement for the transparency of public procurement since it provides for the free reuse of BOAMP data. The data published in the BOAMP is now freely available in an API provided by the Directorate of Legal and Administrative Information (DILA).[Note30: Available here: http://api.dila.fr/opendata/swagger-ui.html#/API_Boamp.]
Completion of this activity is substantial on paper but, given that the implementation deadline remains a year away at the time of this report, the completion level cannot yet be assessed. Article 107 of the decree n°2016-360 makes it mandatory, at the latest by 1 October 2018, for buyers to provide free access to data regarding public contracts above the threshold of 25,000€ (pre-tax value). Similarly, Article 34 of decree n° 2016-86 established obligations for government concessions and Article 94 of decree n° 2016-361 addressed defence and security contracts. Standardisation of data to be disclosed for regular procurement contracts, defence and security contracts and concessions was achieved through a decree adopted on 14 April 2017, which lists information that should be included on buyer profiles and indicates how the data will be communicated as of October 2018. This information includes the identity number of the contract, the identity of the buyer, nature and type of contract, object of the contract, and the type of procurement procedure. For contracts outside of defence and security, buyers must include, inter alia, information regarding dates, expected budgets, location, and information on contractor(s). Buyers also must keep this information current during the implementation of the contract. Buyers have two months to update data, which will remain publicly available for five years after the execution of the contract.
The Digital Republic Law contains legal requirements to include an open data clause in public contracts and states that all public service delegation agreements must include an open data clause requiring contractors to publish information about activities relating to the public contract.[Note31: “Explication des articles” (accessed 21 Sept. 2017), http://www.republique-numerique.fr/pages/explication-des-articles.] The draft government self-assessment indicates that there are no legislative clauses but that the Secretariat for Digital Affairs was working with the Ministry of Economy and Finance to encourage contractors to open data and that several events were planned. The IRM researcher, however, did not find any publicly available information discussing these events, nor was the IRM researcher able to find any evidence that events were held during the action plan implementation period.
Did It Open Government?
Access to Information: Major
Prior to the implementation of this commitment, there was no legal requirement to publish information on public calls for tender in open data format, nor was the format of calls standardised. Implementation of this commitment has spurred movement toward for transparency and access to public procurement processes. Full implementation of the activities will happen outside of the review period. As such, this commitment is a major step toward opening government in terms of access to information.
This commitment was considered to have transformative potential impact given the economic importance of public procurement, especially for the development of local communities. Although many steps were taken toward increased transparency, such as setting a legal obligation to open data about procurement and concession contracts and standardising the data to be disclosed, the implementation of these activities will be completed outside of the review period, which prevents this commitment from reaching its full, transformative potential by the end of the two years.
Besides the lack of full implementation at the national level, there are concerns about the capacity of local governments to implement the relevant activities (see Commitment 1). Some local governments have been very active in implementing the new open data requirements; the Bretagne region set up a platform to centralise data regarding its public contracts and concessions.[Note32: “My Breizh Open Data” is available at: https://breizh-sba.opendatasoft.com/explore/?sort=modified (accessed 1 Nov.2017).]
In December 2016, France joined Contracting 5, an international initiative started by five countries, France, the United Kingdom, Mexico, Ukraine and Colombia, to discuss the development of an international standard for opening information on public procurement. France will lead the initiative in 2018. The IRM researcher did not find any publicly available information on the organisation and its such activities, beyond a date of the next meeting in Amsterdam on 27 and 28 of November 2017.[Note33: Etalab, Transparence de la commande publique : les enjeux et l'engagement de la France, du local à l'international (Etalab, accessed 28 Oct. 2017), https://www.etalab.gouv.fr/la-transparence-de-la-commande-publique-se-transforme-au-service-de-lopen-data.]
This commitment was carried over to the next action plan. The new commitment addresses implementing international standards (Open Contracting Data Standards), creating a “single data flow” for public procurement data, opening data beyond pivotal data; and encouraging innovative usage of public procurement data.