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Les recours en matière de marchés publics en France et aux Etats-Unis : une analyse juridique et économique / Remedies in the Field of Public Procurement Law in France and in the USA: a Legal and Economic Comparison

Listed author(s):
  • François Lichère

    (GREDIAUC - Groupe de Recherches et d'Etudes en Droit de l'Immobilier, de l'Aménagement, de l'Urbanisme et de la Construction - AMU - Aix-Marseille Université)

  • Frédéric Marty

    ()

    (GREDEG - Groupe de Recherche en Droit, Economie et Gestion - UNS - Université Nice Sophia Antipolis - CNRS - Centre National de la Recherche Scientifique, OFCE - Observatoire Français des Conjonctures économiques - Institut d'Études Politiques [IEP] - Paris - Fondation Nationale des Sciences Politiques [FNSP])

Public procurement law is designed to ensure that public procurement contracts are awarded in an open and fair way, and to avoid the possibility that public authorities might be tempted to choose contractors for "political" reasons (such as political parties' funding corporations, local or national firms, etc...). These formal rules governing contracting might also be seen as a way to ensure competition between firms and to impede, or limit, the risk of illegal collusion during a public procurement award process . This last raison d'être helps to explain why, for example, France has a longstanding tradition of regulating public procurement awards which extends back to at least the Nineteenth century . US rules are more recent than French rules, but nevertheless are quite developed. US Government contracting rules are set forth in the Federal Acquisition Regulation (FAR). Department of Defense's (DoD) contracts must be compliant with - the Defense Federal Acquisition Regulation Supplements (DFARs). Under these rules, three procedures are available for the awarding of public contracts. The first one involves a sealed-bid auction, the second involves a negotiated scheme (which might or might not be competitive) and the third involves a simplified procedure. Agencies are permitted to use the third option for very specific goods and services (commercial items) or if the amount does not exceed a given threshold. Our purpose, in this article, is to analyze, from both a comparative law perspective and a law and economics one, decided cases dealing with the awarding of public contracts. Particular emphasis is placed on the GAO's bid protest system, and the jurisprudence of the French Council of State (supreme administrative court).

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Date of creation: 03 Jan 2011
Publication status: Published in Weaver R.L. et Lichère F. Recours et analyse économique / Remedies and Economics, Presses Universitaires d'Aix-Marseille, Aix en Provence, pp.12-75, 2011
Handle: RePEc:hal:journl:hal-00615147
Note: View the original document on HAL open archive server: https://hal.archives-ouvertes.fr/hal-00615147
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