Libraries, public markets and single price

Since decree no. 2018-1075 of December 3, 2018, public contracts for non-school books benefit from a special provision: the procedural exemption threshold for public contracts is set at 90,000 euros excluding tax (instead of 40,000 euros excluding tax) in the case of public contracts for non-school books. passed either for their own needs by the State, local authorities, educational, professional training or research establishments, professional unions and works councils. Either for the enrichment of their collections, by legal entities managing libraries open to the public.

This measure resulted from the observation that the price criterion, usually decisive for the award of public contracts, was almost ineffective in the case of public contracts for non-school books. The objective of the measure was therefore twofold. On the one hand, take better account, in the operation of public procurement, of the normative framework relating to book prices; on the other hand, secure access for local bookstores to public library markets, in order to contribute to maintaining a book distribution network capable of guaranteeing the diversity of creation and the pluralism of opinions and ideas through access to books for as many people as possible.

The terms of the advertising exemption

In this type of public procurement, the contracting authority is not required to announce its intention to make a purchase by publishing in the Official bulletin of public procurement announcementsau Official Journal of the European Unionon its website or on any other information medium. It is not required to implement a formalized or adapted procedure for competitive bidding between economic operators likely to meet its needs, such as those in force for example in the context of public procurement by call for tenders (MAO). or public procurement with an adapted procedure (MAPA).

For the supply of books, the public contract most often takes the form of a framework agreement executed by purchase orders, which can be awarded to a single or several suppliers. If the contracting authority defines lots according to the type of non-school books (adult documentaries, children’s books, comics, etc.) or any other relevant criterion, each lot may be awarded to a separate service provider. The successful bidder(s) undertake contractually with the contracting authority to respond to orders for books sent to them during the duration of the framework agreement. This contract must be in writing if the framework agreement responds to a need whose estimated value exceeds 25,000 euros excluding tax.

A community whose annual need to purchase non-school books is estimated at 70,000 euros excluding tax can opt for a negotiated procedure without prior advertising or competitive bidding if it makes its purchases on an annual basis. On the other hand, if it chooses to enter into a framework agreement for a period of two years or more, it will have to resort, depending on the case, to an adapted procedure (MAPA) or to a formalized procedure, the call for tenders being in the latter case the procedure in principle for the supply of books.

However, the ability to enter into contracts without advertising nor prior competition does not exempt the contracting authority from respecting the main principles of public procurement.

Lfreedom of access to public procurement

All potential providers must be able to access the order, regardless of their size and status.

Equal treatment of candidates

All potential service providers with whom the contracting authority deals within the framework of the contract must benefit from the same treatment and receive the same information.

Transparency of procedures

The buyer must inform the service provider(s) approached about the conditions of the purchase. He must keep the documents (letters, emails, faxes, contracts, etc.) tracing the exchanges with the service provider(s) approached as part of the purchase. He must be able to justify the choice of his service provider and, if necessary, provide reasons to the unsuccessful service providers for rejecting their offer.

Thus, the designated supplier must comply with the requirements of the contracting authority and will have the exclusive purpose of responding to the needs it has expressed. Without there being any need to organize competitive bidding, the contracting authority will take into account in its choice the essential elements for the supply of books: level of discount proposed, delivery times, terms of placing and tracking orders. It may also take into consideration, depending on its needs and its purchasing policy, elements such as after-sales service, the supplier’s organization and its advisory capacity, environmental performance, etc.

The cost of delivery

Added to these provisions was the question of the cost of delivery, in particular competition from Amazon and its free delivery costs. Indeed, the new fourth paragraph of article 1^is of Law No. 81-766 of August 10, 1981, introduced by Law No. 2021 1901 of December 30, 2021 aimed at strengthening the book economy and strengthening fairness and trust between its actors, provided for the principle of ‘a minimum delivery rate for the purchase of new books: “The book delivery service cannot under any circumstances, whether directly or indirectly, be offered by the retailer free of charge, unless the book is collected from a book retail store. It must be invoiced in compliance with a minimum pricing amount set by order of the ministers responsible for culture and the economy on the proposal of the Regulatory Authority for electronic communications, posts and press distribution. . However, article 3 of the same law provided for an exemption with regard to public book markets.

This derogation of Article 3 from the entire fourth paragraph of Article 1 of Law No. 81-766 of August 10, 1981 therefore allows us to consider that public purchasing is not affected by the provisions relating to at the delivery rate. Thus, the price of the delivery of books within the framework of public book markets is free. Whatever the amount of the contract, the public buyer can neither impose free delivery costs nor request compulsory invoicing for this service. In particular, an application should not be considered irregular on the grounds that the offer does not comply with the provisions of the decree of April 4, 2023 provided for outside the framework of public procurement.

Thus, suppliers of books to public buyers, in particular to enrich the collections of their libraries and media libraries, retain the possibility of either offering them a free delivery service whatever the amount of the contract and the delivery terms (sub- processed or not), or to invoice them for this operation.

*Ans. min. No. 11276: JO Senate July 11. 2024, p. 3025 and 3026 – Q. April 18, 2024, Ms. Laure Darcos