Inflation of public procurement data to be published

Inflation of public procurement data to be published
Inflation of public procurement data to be published

If public buyers have been required to publish certain data relating to public procurement since 2004 (article 138 of the Public Procurement Code of 2004 then article 133 of the Public Procurement Code of 2006), the latter was unusable because it was not standardized and published on a multitude of websites.
Also, as part of the transposition of the 2014 European directives, the notion of “essential data” appeared in article 107 of decree no. 2016-360 of March 25, 2006 (resumed in article L. 2196-2 of the Public Procurement Code) with the obligation for public purchasers to publish certain data in an open, free, reusable format and on a single platform: the national open data portal.

If France is ranked first in terms of open data in Europe for the 3e consecutive year according to the European Commission, it is clear that in terms of public procurement, certain public buyers have not (yet) published their essential data for various reasons. However, from 2024, the Economic Observatory of Public Procurement (OECP) will carry out an annual economic census of public procurement (REAP) based solely on essential public procurement data (DECP).

Beyond the publication of this data, public buyers also have the obligation to publish data relating to certain public contracts (e.g.: Egalim law, AGEC law) but also data relating to indicators of purchasing promotion schemes socially and environmentally responsible (SPASER).

Also, public buyers must face an increase in data relating to the public order to be published and declared.

1. Publication of essential public procurement data (DECP)

Decree No. 2022-767 of May 2, 2022 carrying various modifications to the Public Procurement Code and the decree of December 22, 2022 modified the regulatory framework for DECPs. This new framework came into force on 1er January 2024 for public contracts notified from that date.

More precisely, for contracts worth more than 40,000 euros excluding tax, public buyers must publish up to 27 pieces of data and, in particular, the presence (or not) of social consideration, environmental consideration and an innovative market. .

In addition, public purchasers must also publish 7 data linked to the declaration of subcontracting, 6 data relating to the modification of the contracts and 5 data linked to the modification of the act of subcontracting during the procurement.

If the decree of December 22, 2022 only covered the data for which the markets are notified from December 1er January 2024, the decree of March 18, 2024 modifies the system in order to specify that the essential data relating to modifications of contracts, acts of subcontracting, acts of modification of subcontracting which relate to public contracts notified before 1er January 2024, must also be published as open data.

Beyond the publication of this data, public buyers must also declare certain data linked to the execution of certain contracts.

2. The declaration of data relating to the execution of certain public contracts

The first data to be declared relates to expenditure on foodstuffs intended to be used in the composition of meals served in collective restaurants. Indeed, article L. 230-5-1 of the Rural and Maritime Fishing Code (from the Egalim law of 2018) was modified by the Climate and resilience law of 2021 in order to impose annual reporting of these expenditure in order to establish an annual statistical report.

More precisely, the decree of September 14, 2022 specifies that the data relating to expenditure on sustainable and quality products, products from organic farming, sustainable and quality meat and seafood and products from a short circuit or of French origin must be declared annually on the ma cantine platform before March 31 of each year for year N-1.

In addition to food expenses, Decree No. 2021-254 of March 9, 2021 (repealed and replaced as of March 1er July 2024 by Decree No. 2024-134 of February 21, 2024) requires public purchasers to declare annual expenses relating to the acquisition of second-hand products, reconditioned and/or incorporating recycled materials from the products covered by the decree from February 29, 2024. From February 1er July 2024, this data must be published annually on the data.gouv.fr portal (and not to the Economic Observatory of Public Procurement) before June 30 of year N+1.

Finally, in order to report on the obligations provided for in articles L. 224-7 et seq. of the Environmental Code regarding the acquisition of clean vehicles, public purchasers must annually publish data relating to the renewal of their vehicle fleet in order to to determine the share of low emission (VFE) and very low emission (VTFE) vehicles they contain. This data must be declared before September 30 of year N+1 on the data.gouv.fr portal in accordance with article D. 224-15-13 of the same Code.

In addition to the publication of DECPs and the declaration of data relating to the execution of certain public contracts, buyers must also post the results of their SPASER online.

3. Putting SPASER indicators online

Article L. 2111-3 of the Public Procurement Code states that SPASER must determine policy objectives for the purchase of goods and services (and works) comprising elements of a social nature and elements of an ecological nature, on the one hand, and precise indicators (expressed in volume or value) on the real rates of public purchases, on the other hand.

Also, the SPASER must set objectives in terms of socially responsible purchases (e.g. purchases made from ESUS) and ecologically responsible (e.g. purchases linked to the circular economy) then the indicators must be published every two years in order to allow all interested persons (natural or legal entities) to consult them.

By way of illustration, following the adoption of its SPASER for the period 2018-2022, the Brittany Region put its public purchasing data observatory online in May 2022 in order to publish the objectives and indicators of each site determined in its diagram.

For its new SPASER for the period 2023-2025, the new objectives and indicators will also be published on the public purchasing data observatory with a reminder of the objectives and results of 1er SPASER.

This effort at transparency and data sharing was noted by the Economic, Social and Environmental Council (CESER) of Brittany in its 2018 opinion then in its 2022 opinion, emphasizing that “this unique innovation in France […] will facilitate the monitoring of the new indicators retained in the SPASER 2023-2025”.

Conclusion

If the non-publication of data in open data is not sanctioned, it should be noted that the principle of “name and shame” may apply in the event of non-compliance with these obligations.

Indeed, like the publication of the overall payment deadline for the year 2023 for local authorities on the open data platform of the Ministry of the Economy and Finance, it is possible to imagine a publication of the list public buyers who have not published their DECP and/or another list of buyers who have not achieved the objectives set by the AGEC law, Egalim and/or by the Environmental Code.

Beyond the technical constraints (e.g. data relating to market modifications and acts of subcontracting) and the means made available to carry out these publications, it is necessary to raise awareness among all stakeholders of the act of purchasing the interest in compiling and sharing this data.

Otherwise, the collection and then publication of all this data will not be and/or poorly carried out because “too much data kills the data”.

Baptiste Vassor, Lawyer, purchasing expert

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