While a public contract is an agreement between a public entity (hospital, local authority, etc.) and a third party (supplier, contractor, etc.), a private contract brings together two private parties (for example, a craftsman and a developer). Far from being trivial, this simple difference has significant consequences for the rules governing both the tendering process and the execution of the project.
Like most commercial relationships, a private contract is based on the principle of freedom of contract. As stated in Article 1102 of the Civil Code, each party is free to negotiate the contract terms as it sees fit, provided that fundamental principles of private law are respected (good faith, loyalty, etc.). Once signed, the contract itself governs the relationship between the two parties.
By contrast, a public contract is strictly regulated by the Public Procurement Code (Code de la commande publique – CCP), as well as by the General Administrative Conditions for Public Works Contracts and the Special Administrative Conditions. As a result, the regulatory framework applicable to public tenders is far more stringent, both for the buyer and for economic operators (craftspeople, architects, suppliers, etc.).
In a private contract, the project owner is free to choose which companies to inform about the project. They are also completely free to define the specifications provided to tender participants, with no specific formalities other than compliance with general law. In addition, both parties are free to negotiate the contract, particularly regarding remuneration.
On the other hand, a public project owner is required to publicize the tender, in accordance with the rules laid down by the CCP to ensure proper competition (except in specific cases). Moreover, the tender rules must be established in line with the regulatory framework, especially regarding submission conditions and award criteria. These rules are precisely what make negotiation difficult in public procurement.
Although recommended, a private project owner is not required to ensure strict equality of treatment between candidates. For example, they do not have to justify the exclusion of a particular participant and may, if they wish, consistently contract with the same company.
In order to ensure proper use of public funds, public project owners cannot systematically rely on the same operator. On the contrary, public contracts must guarantee open access to all eligible companies. Furthermore, the needs and the means used to meet them must be objective and clearly defined, particularly to justify the choice of one operator over another. All of this information must be communicated to candidates from the very beginning of the tender process.
January 26, 2026 - BY Admin