Works contracts - Execution of public contracts - Litigation and responsibilities

In French law, the distinction between administrative and private contracts is a consequence of the fundamental division that the French legal system makes between public and private law. The official justification for this principled distinction is that the contracting public authorities are considered to be acting in the overriding interest of public service, and therefore not subject to common law. Hence the development of special legal rules, which are qualified as exorbitant from common law because they grant public bodies greater powers than those of private individuals (prerogatives of public authority) or, on the contrary, subject them to more rigorous constraints (public service constraints).

With this in mind, the French Public Procurement Code (CCP) is designed to ensure the sound management of public funds and equal access and treatment of candidates for public procurement contracts. This dual concern is reflected in the detailed regulations governing the award of certain types of contract (invitations to tender, competitive dialogue, negotiated contracts), and in the main principles governing award procedures, contract settlement, authorized subcontracting and the guarantees required of contractors.

As for the Cahier des clauses administratives générales (CCAG) des marchés publics de travaux, this is the reference document determining the terms and conditions of most works contracts (building or civil engineering) awarded by public authorities. It is therefore the logical complement to the Code, which deals mainly with procedures and conditions for awarding contracts.

The study of the legal regime governing public works contracts requires a prior definition of what such a contract is (determination of the parties), as well as the main problems raised by their conclusion (award procedures), which was the subject of article [C 71] . This section covers administrative and financial procedures, liability and insurance issues, as well as litigation.