Assessment of the complexity requirement of a project justifying the use of the partnership contract
As a reminder, a partnership contract is an administrative contract by which the State, a public institution of the State (Article 1 of the amended ordinance of 17 June 2004), a local authority or a local public institution (Article L 1414-1 of the CGCT) entrusts to a third party, for a period determined by reference to the amortization period of the investments or financing terms adopted, a global mission for the purpose of constructing or transforming, maintaining, maintaining, operating or the management of works, equipment or immaterial goods necessary for the public service, as well as all or part of their financing with the exception of any participation in the capital. It may also cover all or part of the design of such works, equipment or immaterial goods as well as services that contribute to the exercise by the public person of the public service mission for which he is responsible.
This type of contract derogates from the common law of the public order in that it makes it possible to escape the rigidities arising from the Public Procurement Code, which prohibits deferred payment clauses, and, secondly, of the law n ° 85-704 of July 12th, 1985 which imposes the control of public work for the buildings which the contracting authority orders for the satisfaction of its needs.
The partnership contract is awarded under the competitive dialogue procedure, which is reserved for complex public contracts when the contracting authority is not in a position either to define alone the technical means that can meet its needs, or to set up the assembly. legal or financial implications of the proposed project (article 2-2 of the amended ordinance of 17 June 2004 and Article L 1414-2 of the CGCT). The complexity of a project is described under three possible approaches: technical, legal or financial complexity. Only one of these approaches is sufficient to validate the use of the competitive dialogue procedure.
To justify the use of the partnership contract under the competitive dialogue procedure, the contracting authority must draw up a preliminary assessment report (Article 2-2 of the amended Ordinance of 17 June 2004 and Article L 1414-2 of the CGCT) which establishes the complexity.
The purpose of this note is to remind you of the conditions for the use of the partnership contract under the competitive dialogue procedure in the context of justifying the technical complexity of the proposed project. This concept of complexity is assessed on a case-by-case basis and in a relatively strict manner, as evidenced by the most recent administrative case law.
Conditions for the use of the competitive dialogue procedure under Community law
Article 29 of Directive 2004/18 / EC authorizes recourse to competitive dialogue only when a contract is "particularly complex" and the contracting authority "considers that recourse to the open or restricted procedure will not allow the contract to be awarded": " When a contract is particularly complex, Member States may provide that the contracting authority, insofar as it considers that the use of the open or restricted procedure will not allow the contract to be awarded, may have recourse to competitive dialogue in accordance with this article ".
It is on reading Article 1 (11) (c) of the Directive that one should understand what a market is " particularly complex ". This is the case, " when the contracting authority is objectively unable to define, (...) the technical means capable of meeting its needs and objectives, and / or is objectively unable to establish the legal arrangement and / or financial of a project ".
Recital 31 of the same directive states that: Contracting authorities which carry out particularly complex projects may, without criticism being addressed to them in this respect, be unable objectively to define the means capable of satisfying their needs or to assess what the market can offer in terms of technical solutions and / or financial / legal solutions. This situation may arise in particular for the creation of large integrated transport infrastructures, the creation of large computer networks or the carrying out of projects involving complex and structured financing, the financial and legal arrangement of which cannot be prescribed in advance. ".
In its explanatory sheet on competitive dialogue, the European Commission clarifies the concept of complexity referred to in Article 1 (11) (c) of the directive and its recital 31: The contracting authority has a duty of care - if by reasonable means it can be able to define the necessary technical means [..], then recourse to competitive dialogue is not possible ".
Conditions for the use of the competitive dialogue procedure under domestic law
In the same way, in domestic law, Article 36 of the Code des Marches Publics recalls that the use of the competitive dialogue procedure is reserved for particularly complex public contracts.
The administrative case law retains a relatively strict approach to the concept of complexity that may justify the use of the partnership contract under the competitive dialogue procedure.
In this respect, it was considered that the difficulties involved in setting up a national coverage system for the provident and health care of Chamber of Commerce and industry staff gradually replacing multiple contracts of protection. The local health care of each chamber, in a context of profound reform of the consular network, objectively made possible the use of competitive dialogue. In this case, the complex nature of the operation was admitted exceptionally only because it was the first time that such a large-scale operation had been implemented at national level (CE 11 March 2013, Assemblies of the French Chambers of Commerce and Industry, n ° 364551 with the conclusions of the public rapporteur Bertrand DA COSTA which highlights the uniqueness of the operation concerned).
Similarly, the administrative judge recognized the technical complexity of the partnership contract launched according to the competitive dialogue procedure for the design, construction, financing and upkeep and maintenance of the future Batignolles courthouse. In this case, it was held that the condition of technical complexity was well fulfilled with regard to the construction of the new tribunal de grande instance in Paris with regard to the following elements: the exceptional dimensions of the work to be carried out, which will have a surface of more than 60,000 m2 and will house 90 courtrooms; the technical and functional constraints induced by the choice, chosen by the public authorities, of building in Paris, in an area under development on old unserviced railway rights-of-way, of a very high building, of which in particular it was decided, moreover, that it should be exemplary in terms of energy performance and sustainable development; the difficulties linked to the characteristics, the realization of this project poses, in terms of safety and security, acoustic and thermal performance, insertion of the building in its environment, maintenance and upkeep of the equipment, as well as control of the risks associated with such a large site; or the impossibility of providing answers to certain questions such as fire safety, water drainage, as well as the choice of facade materials and materials allowing the acoustic insulation of the premises (CAA Paris, April 3, 2014, Association "La Justice dans la Cité", req. n ° 13PA02769).
In the opposite direction, it was judged that the condition of technical complexity was not fulfilled for the project of the realization of the Cité du Surf and the extension of the Aquarium of the Museum of the Sea even when the Municipality was trying to justify the use of the competitive dialogue procedure with regard to the exceptional dimensions of the work to be carried out, which will have a surface of more than 1,300 m2 and will be carried out in an underground space adjoining a road tunnel and an old bunker involving the installation of high technology equipment as well as the maintenance of the opening to the public of existing installations during the duration of the works (EC July 30, 2014, Municipality of Biarritz, req.n ° 363007).
In the same sense, in the IT area, the administrative judge considered that the condition of technical complexity was not fulfilled with regard to the construction of a municipal swimming pool on the territory of a municipality (CAA Lyon, 2nd January 2014, Regional Council of the Association of Architects of Auvergne, n ° 12LY02827) or for the overhaul of the back office processing system for intellectual property rights of the National Institute of Industrial Property (TA Cergy-Pontoise, Ord.27 February 2014, European Dynamics Luxembourg, No. 1400918).
In its judgment of July 30, 2014, Commune de Biarritz, the Council of State took care to recall the rule that " the mere invocation of the complexity of the technical processes to be implemented can not be sufficient to legally justify the use of the partnership contract "Passed according to the competitive dialogue procedure.
What you must remember :
In order to legally secure the procedure for awarding a partnership contract under the competitive dialogue procedure, it is therefore recommended that the contracting authority provide a good rationale for the complex nature of the operation envisaged in its prior assessment report. This motivation must imperatively intervene before the launch of the operation.
Competitive dialogue, however, contributes to the efficiency of public procurement by allowing the contracting authority to engage upstream with specialized economic operators in order to improve the definition of solutions that best meet its needs. This is the reason why Directive 2014/24 / EU of the European Parliament and of the Council of 26 February 2014 on the award of public contracts which will enter into force on April 18, 2016 considerably relaxes the various assumptions that will make it possible to use this derogatory procedure.
Thus, recital 42 of that directive states that: It is absolutely necessary that contracting authorities have more flexibility in choosing a negotiating procedure for negotiations ... Member States should be able to provide for the use of the competitive procedure with negotiation or the competitive dialogue in the Member States. various situations where an open procedure or a restricted procedure without negotiation is not likely to give satisfactory results ".
The usefulness of the competitive dialogue procedure was more particularly affirmed by this same recital: It should be recalled that in terms of market volume, the use of competitive dialogue has increased considerably in recent years. This procedure has proved useful in cases where the contracting authorities are unable to define the means enabling them to meet their needs or to assess the solutions that the market can offer on the technical, financial or legal level. This may in particular be the case for innovative projects, the carrying out of major integrated transport infrastructure projects, large computer networks or projects involving complex and structured financing. Where appropriate, contracting authorities should be encouraged to appoint a project manager in order to ensure good cooperation between economic operators and the contracting authority during the award procedure ".
The contracting authorities will now be able to use the competitive dialogue procedure ”, for all types of contracts when at least one of the following five situations is met:
- Their needs " can not be satisfied without adapting immediately available solutions (Article 26.4 (a) (i) of the Directive);
- Their needs " include design or innovative solutions (Article 26.4 (a) (ii) of the Directive);
- The market " cannot be allocated without prior negotiations due to particular circumstances related to its nature, its complexity or the legal and financial arrangement or because of the risks attached to it (Article 26.4 (a) (iii) of the Directive);
- The contracting authority is unable to define the technical specifications with sufficient precision by referring to a standard, a European technical assessment, a common technical specification or a technical reference (...) (Article 26.4 (a) (iv) of the Directive);
- When only " irregular or unacceptable offers have been submitted "within the framework of an" open or restricted procedure (Article 26.4 (b) of the Directive).
These different hypotheses imply a substantial widening of the conditions for resorting to the competitive dialogue procedure, in particular because of the very general nature of the first three hypotheses, even if the requirement relating to the justification of the complexity of the project persists and must always be justified.