Assistant to project management: the provision of lawyers does not subcontract!
Assistance to project management: outsourcing the provision of lawyers is prohibited!
Some project management assistance tasks include not only financial and technical services, but also legal services to secure decision-making by the contracting authority, whether at the project selection, launch or follow-up stage. of its implementation. However, these legal services can only be carried out by certain categories of professionals authorized by the law n ° 71-1130 of 31 December 1971 reforming certain judicial and legal professions and mainly lawyers. In a judgment dated June 20, 2014, the Administrative Court of Grenoble pronounces for the first time on the delicate question of the compatibility of the outsourcing regime with the rules of professional ethics governing the profession of lawyer.
Prohibition of outsourcing the provision of lawyers as part of a project management assistance mission involving legal services
Subcontracting is the operation whereby an economic operator entrusts to another economic operator called a subcontractor the performance of part of the services of a public contract concluded with the contracting authority (Article 1st of the law n ° 75-1334 of December 31, 1975). Subcontracting therefore involves the conclusion of two separate contracts: the public contract concluded between the holder and the contracting authority and a private-law contract concluded between the holder and the subcontractor. The contracting authority has no contractual relationship with the subcontractor (EC 6 March 1987, OPHLM de Châtillon-sous-Bagneux, application number 37731). The question of the regularity of the outsourcing of legal services to a lawyer as part of a project management assistance mission deserved to be decided in the light of the ethical rules governing the profession and even more so in the measure where they are supposed to be binding on the contracting authority at all stages of the tendering procedure (EC Ass 9 April 1999, Mrs Toubol-Fisher, Req.no 196177- Article 30-4 of the Code des Marches Publics) .
In its judgment of 20 June 2014, the Administrative Court of Grenoble considers that the outsourcing of the provision of lawyers in public contracts is irregular in light of the ethical rules governing the profession. This judgment only confirms the position of the National Bar Council since 2011 that outsourcing the provision of lawyers is contrary to the principle of independence that excludes any contractual mode in which the lawyer is not in direct contact with the true beneficiary of the legal service. In his vade-mecum of the exercise of the right, he even goes so far as to consider the outsourcing of the legal profession as "unlawful" (Vademecum of the Exercise of the Right, CNB, p.39) . In view of the position adopted by the National Council and the decision rendered by the Administrative Court of Grenoble, it must be admitted that the outsourcing of the public procurement of lawyers is prohibited.
In what legal form can a lawyer participate in a project management assistance mission with other professionals who are not lawyers?
Article 18 of the National Rules of Procedure (RIN) governing the profession of lawyers provides that they may participate in public procurement procedures involving legal services either as an individual candidate or as a joint or several group with other lawyers, or in quantity of joint association with other professionals not having the quality of lawyer. The RIN does not mention subcontracting and does not provide any specific rules to intervene in this capacity with other non-lawyer professionals. In this hypothesis, the only contractual mode that meets the objectives of Article 18 of the RIN as well as those of the Interprofessional Collaboration Charter adopted by the National Bar Council on June 14, 2006 is the grouping and more specifically the joint grouping. In this case, each member of the group is a signatory of the contract concluded with the contracting authority, acts independently without any interference of any kind whatsoever in the organization or performance of its services and is personally liable of its services vis-à-vis the customer. All these guarantees are not found when the lawyer acts as a subcontractor since one of the characteristics of subcontracting is that there is no contractual relationship between the subcontractor and the contracting authority. In its judgment, the Administrative Court of Grenoble validates this position by considering that legal services can be issued only "directly" by professionals who have the qualifications required by Article 54 of the Law of 31 December 1971, which implies that they are "co-contracting of the market in whose execution they must participate and therefore they sign the act of engagement".
It follows that the offer of a non-lawyer economic operator who offers a subcontracting of legal services reserved to a lawyer contravenes the requirements of Law No 71-1130 of 31 December 1971 must be regarded as an unacceptable offer and rejected by the contracting authority, save to automatically injure the other unsuccessful candidates regardless of their classification (EC 11 April 2012, London LLOYD'S Syndicate ODY 1218 NEWLINE, Req. No. 354652). In the same way, a contract comprising legal services awarded to a service provider who does not satisfy the conditions of the law of 31 December 1971, in other words, who unlawfully subcontracts legal services must be regarded as void (CAA Lyon , May 15, 2014, Prefect of the Côte d'Or, req.no. 13LY1309). In the end, if the contracting authorities are justified in terminating all the contracts in force for this reason, from their side, the lawyers are deontologically obliged to request their withdrawal from all the public contracts in which they intervene. quality of subcontractor.
See the article published in the journal of the Monitor of Public Works