Splitting works into packages and coordinating them in French public contracts

Article L2113-10 of the procurement code lays down the principle: "Contracts are placed in separate packages, unless their subject matter does not allow distinct works to be identified." Article L2113-11 sets out the cases in which the buyer may decide not to split.

A third case, the risk of an unsuccessful procedure, applies only to contracting entities (3°). A buyer that decides not to split gives reasons for its choice "by setting out the considerations of law and fact on which its decision is based" (L2113-11), in the procedure documents it keeps under the adapted procedure (R2113-2) or, for a contracting authority above the formal procedure thresholds, in the consultation documents or the procurement report (R2113-3).

The justification for not splitting has to be documented on the procurement file, not merely held in the buyer's or the design team's head. On a challenge, that is the document the administrative court will examine. A vague justification such as "for reasons of coordination" is inadequate: it has to show why separation is technically impossible or economically irrational.

Splitting is not an arbitrary division. It has to follow a trade logic that maximises competition, so that several specialist contractors can bid for each package, and minimises complex interfaces, so that works touching one another sit in the same package or have clearly defined boundaries.

• By specialist trade, the classic approach: frame, roof structure and covering, external joinery, drylining and insulation, internal joinery, tiling, decoration, plumbing, electrical, mechanical. Ten to twelve packages on a medium-sized building. Maximum competition, and the maximum number of interfaces to manage.

• By grouped package, the simplified approach: grouping the packages whose interfaces are most complex, envelope, covering façades, roof and external joinery; interiors, covering drylining, floors and decoration; and services, covering plumbing, mechanical and electrical. Three to five packages. Less competition on each, but far fewer interfaces.

The choice depends on the buyer's capacity to manage interfaces. An authority with no project manager will do better with five well-defined grouped packages than with twelve whose interfaces were never made contractual.

ℹ The preliminaries package: not to be forgotten The preliminaries, or site establishment package, is often left out of a tender package or absorbed into the frame without being clearly defined. Yet site establishment, hoarding, cabins, welfare, access, skips, signage, represents 1 to 3 % of the works. On a split contract there are two options: a separate preliminaries package awarded to the frame contractor, who runs the establishment for everyone, or each package carrying its own share. The first is simpler to manage, but it makes every package dependent on whoever holds the preliminaries.

Splitting creates interfaces, zones where two different contractors work successively or simultaneously on the same element. Those interfaces have to be defined in the specification of each package concerned, stating precisely who does what, in what order, and to what tolerances.

The general rule: every critical interface has to appear in the specification of both packages concerned, in the same words. An interface defined in the frame specification but absent from the joinery one creates a contractual blind spot the joinery contractor will exploit to claim additional work.

Coordinating the packages on site rests on two tools: the programme coordination role and the site meetings. On a public contract that coordination role is distinct from the design appointment and can be given to the architect, to an economist, or to a specialist.

• The construction programme: a detailed programme by package, with the interface milestones, is drawn up during the preparation period before the instruction to commence and updated monthly. Each contractor signs off its part and is contractually bound by the milestones.

• Weekly site meetings: attended by the site managers of every active package, with minutes issued within 48 hours. Those minutes are the key evidence in any dispute over responsibility for a delay.

• Liquidated damages by package: on a split contract, damages apply package by package where the periods are set that way. Where one package's delay pushes back the others, responsibility has to be attributed clearly; cross-charging between packages is possible but complex to operate.

• Partial completion: on a final package such as decoration or flooring, completion can be certified package by package as soon as it finishes. For a contract that refers to the 2021 standard works conditions, that starts, for that package, the guarantee period during which the contractor is bound by the making-good obligation, one year from the date on which completion takes effect, unless extended (art. 44.1). The retention is not released at completion: it is repaid within thirty days of the end of that period or, where snags notified during it have not been cleared by its end, within thirty days of their clearing (R2191-35).

A phased contract lets a single tender be run for the whole project while making execution conditional on the budget being available. The firm phase is carried out in every case; the optional phases are triggered only by a specific instruction from the buyer.

• The firm phase: work whose execution is certain, and which has to be defined so as to constitute a coherent project in itself. The firm phase alone must be functionally complete.

• The optional phase: work whose execution depends on the buyer's decision, an extension, additional equipment, a second phase. The pricing schedule has to carry a subtotal per phase.

• Prices in the optional phases: the rates for the optional phases are contractual from notification, and the buyer cannot renegotiate them when a phase is triggered.

Splitting into packages is a legal duty, with three cases for not splitting (L2113-11): the buyer is not able to ensure the organisation, management and coordination itself; splitting into separate packages is likely to restrict competition or risks making execution technically difficult or financially more expensive; it risks leading to an unsuccessful procedure, a case reserved to contracting entities, each of which has to be documented on the procurement file. Two approaches exist: specialist trades, at ten to twelve packages with maximum competition, and grouped packages, at three to five with fewer interfaces. The preliminaries package must not be forgotten. Six critical interfaces have to be made contractual in the specifications: openings through the structure, duct routes, suspended ceilings, floors and partitions, façade and joinery, and decoration last. Each must appear in the specification of both packages. During construction: a programme by package, weekly meetings, damages by package, and partial completion. Phased contracts make execution conditional on the budget, and the rates in the optional phases are contractual from notification.

The nature of the figures quoted

The percentages and amounts quoted on this page are orders of magnitude for framing, not measurements. They illustrate mechanisms and proportions, and they substitute neither for a tender exercise nor for an estimate prepared on drawings.

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