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Legal News
The ethical public market: the failure of socially responsible public purchasing
Combining ethics and the public market surprises as the terms are so distant. Initially, ethics and the public market represented exclusively the purchase devoid of any criminal reprehensible influence. This conception has evolved to penetrate the sphere of defining the needs of buyers. So, ethics in the public market has become the rule requiring buyers to seek the most economically advantageous offer. It is no longer enough to acquire the least, the law requires make the best choice.
Acceptance of the work entails receipt of all project management services
CE December 2, 2019, Sociétés Guervilly, Puig Pujol Archtiecture, req.n ° 423544
In this case, the Council of State recalls on the one hand that the reception puts an end to the contractual relations between the project owner and the project manager as regards the services inseparable from the realization of the work in number of which include design missions; on the other hand, that the absence of notification of the general statement allows the owner to call in guarantee the main contractor for the assumption of additional works.
Methods of apportioning and contesting penalties by members of a joint group
CE December 2, 2019, Sté Giraud-Serin, req.n ° 422615
In this case, the Council of State ruled for the first time on the procedures for contesting late payment penalties by the members of a joint group and the jurisdiction of the administrative judge to settle this type of dispute.
The subcontractor has the right to reassess the amount of the special act!
CE December 2, 2019, Department of the North, req.n ° 422307
In this case, the Council of State rules for the first time on the right of the subcontractor to obtain the reassessment of the amount of its special act as soon as it performs additional services that the owner cannot ignore.
Tacitly renewable market: what rights to compensation?
CE December 2, 2019, North West Touraine Health Cooperation Group, req.n ° 423936
In this case, the Council of State provides useful details on the extent of the right to compensation of an ousted candidate when the market is tacitly renewable. This case is an opportunity to recall the compensation rules for fixed-term contracts and for contracts with automatic renewal.
Subcontractor: from when a request for direct payment to the client is no longer admissible?
CE December 2, 2019, Sté FIDES, req.n ° 425204
In this case, the Council of State provides useful procedural details on the stage from which the subcontractor loses its right to direct payment for the services provided to the contracting authority. To benefit from the right to direct payment by the contracting authority for the services which it has carried out within the framework of the performance of the contract, the approved subcontractor must submit its request for direct payment to the contracting authority before notification of the contract statement to the holder.
On the responsibility of public accountants in matters of public procurement control
CE December 6, 2019, Minister of Action and Public Accounts, req.n ° 425542
In this case, the Council of State recalls the basis of the responsibility of public accountants in matters of control of public contracts and the procedures for assessing the existence of any financial loss linked to control failures
New Juridical Precisions on the Definition of an Irregular Offer
CE 4 October 2019, SMIDDEV, req. No. 421022
The Council of State clarifies the scope of the incomplete nature of an offer by considering that an offer of a candidate who does not include a prefectural approval necessary for the performance of the services of the market but not required by the regulation the consultation does not allow to declare the offer irregular.
The impossibility of the contracting party to request the nullity of his own contract!
In that case, the Conseil d'État recalls that the fairness of the contractual relations precludes a co-contracting party from availing itself of the irregularities that it may have committed to claim the nullity of its own contract and to release itself from its contractual obligations.
Teaching n ° 1: No one can invoke his own turpitude to question his contract
In its judgment of 28 December 2009, Beziers I ", The Council of State has already had the opportunity to recall in his famous decision" Beziers I " than " the irregularities on which the parties rely are those which, having regard to the requirement of fair contractual relations, may be invoked before it (CE Ass 28 December 2009, application No. 304802)
Offer variant in adapted procedure: to read well its regulation of the consultation!
CE 20 September 2019, BGC company, n ° 421317
The Council of State reminds that in the context of an adapted procedure, in the absence of clarification of the regulation of the consultation, the tenderers can freely propose one or several variants instead of the basic offer except if the regulation of the consultation imposes the presentation of a basic offer.
The modalities of presentation of a variant offer in adapted procedure: possible in the silence of the regulation of the consultation
In the case of public contracts awarded under an adapted procedure, candidates may propose variants in the absence of clarification of the rules of the consultation.