News

1) Decree No. 2025-1383

Decree No. 2025-1383 of December 29, 2025 introduces various measures to simplify public procurement law. This decree came into effect on January 1, 2026.

Several changes were made:

• Reduction of the minimum turnover required for bidding companies (Article R. 2142-7 of the Public Procurement Code)

Before January 1, 2026:
2x the contract or lot value

Since January 1, 2026:
1.5x the contract or lot value

• New possibility to contract directly with the company ranked second if the selected bidder is unable to execute the contract, identified before the contract award notice:
  • Either due to a fortuitous event
  • Or due to a force majeure event

  If necessary, this procedure can be repeated with other bidders according to the ranking of their offers (Article R. 2181-7).

This new provision raises several questions:

• How should the buyer assess the reasons invoked by the prospective awardee? While the DAJ specifies that the awardee cannot withdraw from their offer for reasons of convenience and “must demonstrate to the buyer by any means that they are unable to execute the contract for reasons beyond their control,” questions remain about the buyer’s role in evaluating this incapacity. How can the buyer verify the statements and arguments of the prospective awardee? Should a formal review period be considered to allow the buyer to verify these claims? If so, a period of 5–10 days seems necessary to accurately assess the situation. Candidates should therefore provide external evidence to quickly substantiate any claimed incapacity.
• Would the buyer have an interest in opposing the withdrawal of the prospective awardee? It is worth questioning whether it is in the buyer’s interest to contest such a withdrawal. This could force the awardee into a contractual relationship they do not wish to engage in. Even before the contract execution begins, this situation is unlikely to foster smooth contract performance.
• Would the buyer have an interest in contracting with the second-ranked bidder? In this case, the buyer must analyze:
  • The timeline for contract execution
  • The economic and financial relevance of the second bidder’s offer (especially if the price is significantly higher)
  • The procedural cost of reopening the competition
• Could the option to withdraw from a contract lead to anti-competitive or abusive behaviors? Allowing the awardee to claim incapacity to avoid fulfilling their offer could create a risk of anti-competitive behavior. The awardee might face pressure from other competitors to withdraw from the contract, raising the risk of collusion.Similarly, there is a significant risk that this provision could be abused by an awardee who wishes to avoid honoring their offer for any reason (too low a bid, difficult contract requirements, less attractive lot allocation, temporary supply issues, etc.) that does not constitute either a fortuitous event or force majeure. The requirement to provide external evidence to substantiate the claimed incapacity will therefore be critical in such cases.

How does this mechanism interact with the contract award process?

In principle, the buyer must promptly notify each concerned candidate or bidder of their decision to reject their application or offer (Article R. 2181-1 of the Public Procurement Code). Now, the notification of rejection decisions may be delayed to allow the awardee to invoke incapacity due to a fortuitous or force majeure event within a certain period. Article R. 2187-1 states:

“If, after the choice of the awardee and before the notification provided for in Article R. 2181-1, the operator is unable, due to a fortuitous event or force majeure, to execute the contract, the buyer may approach the bidder whose offer was immediately ranked after.”

This new procedure, while securing an already ongoing process, may extend its duration.

The advancement of contract execution to trigger the reimbursement is now clarified:

• For the primary contractor: the start of the advance reimbursement corresponds to the services executed by the contractor only (excluding services performed by subcontractors).
• For subcontractors eligible for direct payment: reimbursement begins when the value of services executed by the subcontractor reaches 65% of the total VAT-inclusive amount of their contract portion.

2) Decree No. 2025-1386

The following table summarizes all threshold changes for 2026:

Beyond the usual threshold changes, note the following:

• The exemption threshold for advertising and competition increases from €40,000 to €60,000 excl. VAT for routine supplies and services (effective from April 2026).
• The €100,000 excl. VAT threshold for works contracts is now permanent.

The decree also raises to €60,000 excl. VAT the threshold from which consultation documents must be made available on the buyer profile from the publication of the call for tenders notice (Article R. 2132-2).