Participation des personnes publiques aux marchés publics : les règles à respecter

Participation of public persons in public procurement: the rules to be respected

by gmorales on 11 November 2015 | Category: Public markets
Participation des personnes publiques aux marchés publics : les règles à respecter Participation des personnes publiques aux marchés publics : les règles à respecter

Participation des personnes publiques aux marchés publics : les règles à respecter Rule n ° 1: the principle

A public person may participate in an advertising and tendering procedure initiated by another public person. The Conseil d'Etat considers that no principle or text prevents a public person from applying for the award of a public contract to meet the needs of another public person.

Rule n ° 2: the modalities

The regularity of this participation is subject to two conditions: on the one hand, this participation must respond to a public interest, that is to say constitute the extension of a public service mission for which it is responsible, for the purpose in particular to depreciate the equipment, to value the means available to the service or to ensure its financial equilibrium; on the other hand, it must not compromise the exercise of its public service mission.

Rule # 3: Price Control Proposed

In its opinion Jean Louis Bernard Consultant dated November 8, 2000, the Council of State recalled that no text or principle prohibits, because of its nature, a public person, to apply for the award of a public contract or a public service delegation contract (CE Opinion November 8, 2000, Jean Louis Bernard Consultants, No. 222208). On the other hand, as the Conseil d'Etat points out in its opinion, this participation is authorized only if the contracting authority carries out a certain number of checks in order not to break the equality with economic operators working in the sector. competitive
In the judgment of December 30, 2014, the Council of State reminds that the participation of the public person must not distort the conditions of competition. It follows that the contracting authority must in particular control the proposed price by taking into account all the direct and indirect costs involved in its formation, and verify that this does not result from a benefit deriving from the resources or means awarded to him as part of his public service tasks.

Rule n ° 4: the justification of the proposed prices

In the event of a dispute or doubt, the contracting authority shall at the very least be required to request the justification of its tariffs and secondly to verify that it has not benefited from the resources or means allocated to it. as part of its public service mission accounting documents to support the equality of candidates. The absence of such verification would distort competition between public and private operators.

Board of state

N ° 355563
ECLI: FR: CEASS: 2014: 355563.20141230
Published in Lebon collection
Assembly
Mrs Laurence Marion, rapporteur
Mr Bertrand Dacosta, public rapporteur
SCP MONOD, COLIN, STOCLET; RICARD; SCP COUTARD, MUNIER-APAIRE, lawyer (s)

Reading of Tuesday, December 30, 2014
FRENCH REPUBLIC
IN THE NAME OF THE FRENCH PEOPLE

Considering the summary appeal and the complementary memorandum, registered on January 4, 2012 and April 4, 2012 with the secretariat of the litigation of the Council of State, presented for the company Armor SNC, whose seat is at Quai du Président Wilson in Nantes (44200); the company Armor SNC asks the Council of State:

1 °) to cancel the judgment n ° 10NT01095 of November 4, 2011 by which the administrative court of appeal of Nantes rejected his request tending, on the one hand, to the cancellation of the judgment n ° 0603521 of April 9, 2010 by which the Administrative Court of Nantes rejected its request for annulment of the decision of 16 June 2006 of the tender commission of the Department of Vendée rejecting its offer for the award of the public contract relating to dredging the estuary of Lay and retaining that of the department of Charente-Maritime, as well as the decision of the president of the Vendée general council to sign the contract with this department and, on the other hand, the cancellation of these two decisions;

2 °) settling the case on the merits, to grant his appeal;

3 °) to put jointly to the charge of the departments of Vendée and Charente-Maritime the sum of 6 000 euros under Article L. 761-1 code administrative justice;

Considering the other parts of the file;
Given the general code of local authorities;
Considering the code of administrative justice;
After hearing in open session:

- the report of Mrs Laurence Marion, Master of Petitions,
- the conclusions of Mr Bertrand Dacosta, public rapporteur;

The word having been given, before and after the conclusions, to the SCP Monod, Colin, Stoclet, lawyer of the company Armor SNC with whose rights comes the company EMCC, with the SCP Coutard, Munier-Apaire, lawyer of the department of the Vendée and Me Ricard, lawyer of the department of Charente-Maritime;

1. Considering that it appears from the documents in the file submitted to the judges of the merits that the Department of Vendée launched in 2006 a procedure for awarding a public contract for the dredging of the Lay estuary; that this contract was awarded to the department of Charente-Maritime; that the company Armor SNC, candidate ousted, asked the annulment of the decision of the commission of call for tenders and that of the president of the general council of Vendée to sign this market; that the company Armor SNC, whose rights came the company Morillon Enterprises Corvol Courbot, appeals in cassation against the judgment of November 4, 2011 by which the Administrative Court of Appeal of Nantes confirmed the judgment of the Administrative Court of Nantes rejecting this request;

2. Considering that, apart from those entrusted to them on behalf of the State, the powers possessed by local authorities or their public institutions of cooperation are exercised with a view to satisfying a local public interest; that if there is no principle or text that prevents these communities or their public cooperating institutions from applying for a public procurement contract to meet the needs of another public entity, they can not legally to apply for such a candidature only if it meets such a public interest, ie whether it constitutes an extension of a public service mission for which the community or the public cooperation institution is responsible, in particular to depreciate equipment, enhance the means available to the service or ensure its financial equilibrium, and provided that it does not compromise the exercise of this mission; that once accepted in principle, this application must not distort the conditions of competition; In particular, the price proposed by the local authority or the public establishment of cooperation must be determined by taking into account all the direct and indirect costs involved in its formation, without the public authorities having, in order to determine it, an advantage deriving from the resources or means allocated to it in respect of its public service tasks and provided that it can, if necessary, justify this by means of its accounting documents or any other appropriate means of information; whereas these rules finally apply without prejudice to the cooperation which public persons may organize between themselves, in the context of relations distinct from those of operators operating in a competitive market;

3. Considering that by not seeking, to rule out the plea that the Department of Charente-Maritime could not legally submit an offer in the context of a public contract executed outside its territorial limits without recourse to a local public interest, if the candidacy of this department was an extension of one of its public service missions, the Nantes Administrative Court of Appeal made an error of law; that, consequently, and without it being necessary to examine the other means of the appeal, its judgment must be annulled;

4. Considering that the provisions of Article L. 761-1 of the Code of Administrative Justice preclude the fact that the company Morillon Corvol Courbot, which is not in this case the losing party, is charged to the company , the payment of an amount for expenses incurred by the departments of Vendée and Charente-Maritime and not included in the costs; On the other hand, it is appropriate, in the circumstances of the case, to charge the latter the payment of the sum of 3,000 euros each to the company Morillon Corvol Courbot;

DECIDE:
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Article 1: The judgment of 4 November 2011 of the Administrative Court of Appeal of Nantes is canceled.

Article 2: The case is referred to the Administrative Court of Appeal of Nantes.

Article 3: The department of Charente-Maritime and the department of Vendée will pay each company Morillon companies Corvol Courbot a sum of 3,000 euros each under Article L. 761-1 code administrative justice.

Article 4: The conclusions of the Department of Charente-Maritime and the Department of Vendée presented pursuant to Article L. 761-1 code administrative justice are rejected.

Article 5: This decision will be notified to the companies Morillon Corvol Courbot, the department of Vendée and the department of Charente-Maritime.

Copy for information will be sent to the Institute of Delegated Management, the Association of Mayors of France, the Minister of the Interior and the Minister of Economy, Industry and Digital.

Summary :

135-01 1) The powers of local authorities or public institutions of inter-municipal co-operation (EPCI) are exercised, except those entrusted to it on behalf of the State, with a view to satisfying a local public interest. If no principle or text precludes these communities or EPCIs from applying for a public procurement contract to meet the needs of another public body, they can not legally apply for such a nomination if it is an extension of a public service mission for which the community or the public institution of cooperation is responsible, in particular for the purpose of amortizing equipment, making use of the means available to the service or ensuring its financial balance, and provided that it does not compromise the exercise of this mission .... ,, 2) Once admitted in principle, this application must not distort the conditions of competition. In particular, the price offered by the local authority or the public establishment of cooperation must be determined taking into account all the direct and indirect costs involved in its formation, without the public authority benefiting, to determine it, from a benefit deriving from the resources or means allocated to it in respect of its public service tasks and provided that it can, if necessary, justify that by its accounting documents or any other appropriate means of information.

14-01-01 1) The competences available to local authorities or public intercommunal cooperation institutions (EPCI) are exercised, except those entrusted to it on behalf of the State, with a view to satisfying a local public interest . If no principle or text precludes these communities or EPCIs from applying for a public procurement contract to meet the needs of another public body, they can not legally apply for such a nomination if it is an extension of a public service mission for which the community or the public institution of cooperation is responsible, in particular for the purpose of amortizing equipment, making use of the means available to the service or ensuring its financial balance, and provided that it does not compromise the exercise of this mission .... ,, 2) Once admitted in principle, this application must not distort the conditions of competition. In particular, the price offered by the local authority or the public establishment of cooperation must be determined taking into account all the direct and indirect costs involved in its formation, without the public authority benefiting, to determine it, from a benefit deriving from the resources or means allocated to it in respect of its public service tasks and provided that it can, if necessary, justify that by its accounting documents or any other appropriate means of information.

14-08 1) The competences available to local authorities or public intercommunal cooperation institutions (EPCI) are exercised, except those entrusted to it on behalf of the State, with a view to satisfying a local public interest. If no principle or text precludes these communities or EPCIs from applying for a public procurement contract to meet the needs of another public body, they can not legally apply for such a nomination if it is an extension of a public service mission for which the community or the public institution of cooperation is responsible, in particular for the purpose of amortizing equipment, making use of the means available to the service or ensuring its financial balance, and provided that it does not compromise the exercise of this mission .... ,, 2) Once admitted in principle, this application must not distort the conditions of competition. In particular, the price offered by the local authority or the public establishment of cooperation must be determined taking into account all the direct and indirect costs involved in its formation, without the public authority benefiting, to determine it, from a benefit deriving from the resources or means allocated to it in respect of its public service tasks and provided that it can, if necessary, justify that by its accounting documents or any other appropriate means of information.

39-02-01 1) The competences available to local authorities or public intercommunal cooperation institutions (EPCI) are exercised, except those entrusted to it on behalf of the State, with a view to satisfying a local public interest . If no principle or text precludes these communities or EPCIs from applying for a public procurement contract to meet the needs of another public body, they can not legally apply for such a nomination if it is an extension of a public service mission for which the community or the public institution of cooperation is responsible, in particular for the purpose of amortizing equipment, making use of the means available to the service or ensuring its financial balance, and provided that it does not compromise the exercise of this mission .... ,, 2) Once admitted in principle, this application must not distort the conditions of competition. In particular, the price offered by the local authority or the public establishment of cooperation must be determined taking into account all the direct and indirect costs involved in its formation, without the public authority benefiting, to determine it, from a benefit deriving from the resources or means allocated to it in respect of its public service tasks and provided that it can, if necessary, justify that by its accounting documents or any other appropriate means of information.

On the principle of this application, CE, October 16, 2000, Mediterranean Company operating "water services, No. 212054, p. 423; EC, opinion, November 8, 2000, Jean-Louis Bernard Consultants Company, p. 492.,, [RJ2] Cf, on the fact that this application is not comparable to the assumption of responsibility of an economic activity, while specifying the conditions applicable, CE, July 10, 2009, Department of the Aisne, No. 324156, T. p. 829, 841., [RJ3] See, EC, opinion, November 8, 2000, Jean-Louis Bernard Consultants, p. 492.