Public procurement: the experimental system for innovative purchasing is perpetuated

In our article “The “innovative” character of a product/service: one of the possible conditions of the negotiated market” we presented the temporary system allowing a public contract to be concluded without advertising or competitive bidding as part of the testing of a product or service.

This possibility was opened by Decree No. 2018-1225 of December 24, 2018. In order to promote innovation in public procurement, this decree created a three-year experiment (2018-2021), allowing buyers (public entities) to enter into negotiated contracts without advertising or prior competition, for their innovative purchases of an amount less than €100,000. This experiment was open under several conditions:

• A purchase that must be innovative,
• An amount of need less than 100,000 euros excluding tax.

The end of this experiment was initially set for December 31, 2021.

Finally, this temporary system was made permanent by thee decree no. 2021-1634 of December 13, 2021 relating to innovative purchasing, which inserts a new article R. 2122-9-1 in the public procurement code.

From now on, public buyers can conclude public contracts with companies without advertising or competition for innovative purchases.

As a reminder, the innovative purchases concerned are defined by article R. 2124-3 of the Public Procurement Code, 2°. These are new or significantly improved works, supplies or services. It is specified that the innovative character may consist of the implementation of new production or construction processes, a new marketing method or a new organizational method in the practices, the organization of the workplace or the external relations of the company. It can therefore be not only a technological product or process innovation but also a related organizational or marketing innovation.

To check whether your innovative products or services are likely to be the subject of an innovative public procurement without advertising or competitive bidding, contact LegalProtech Avocats!