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.
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
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.
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)
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.
The Council of State reminds that when a contract provides for a conciliation procedure prior to a dispute or litigation the public person can not legally issue an enforceable title for the settlement of sums corresponding to a dispute relating to the performance of the contract without putting previously implemented the mandatory conciliation clause. On the other hand, it can not contractually renounce its power to issue an enforceable title against its co-contracting party after the implementation of the conciliation procedure.
The Council of State recalls that an offer that does not include all the documents or information required by the documents of the consultation is irregular and must be eliminated. The consultation rules may also be that for the rating of a criterion, an offer that does not contain certain information may be awarded a score of zero.
Teaching n ° 1: An offer that does not respect a mandatory prescription of the regulation of the consultation is irregular
The texts and the case law recall the mandatory nature of the consultation rules
In this case, the Council of State recalls that the obligation to pay the services performed by the subcontractor is the responsibility of the contracting authority. However, it specifies that the obligation may affect the agent of the owner when he has been entrusted with the exercise of certain duties relating to the services performed by the subcontractor.
Teaching # 1: Laction in direct payment of a subcontractor against the contracting authority
The Council of State recalls the conditions of the direct payment of the subcontractor. It specifies that the service performed by the subcontractor, if it has been accepted »And« whose terms of payment have been agreed "By the contracting authority imposes on the latter an obligation to pay (article 6, law of 31 December 1975 relating to subcontracting). In other words, only these services validated by the owner of works give right to the direct payment by the owner.
The Council of State reiterates the conditions under which a local authority or a public cooperative institution may apply for the award of a public contract and the scope of the judge's review of the summary proceedings in the event of a dispute with the from a competitor who has been ousted.
Teaching n ° 1: a public institution can be a candidate for the signature of a contract subject to the respect of the principle of specialty
The Council of State has already had occasion to recall that the public persons can be candidates for the attribution of a contract of the public order, in the same way and under the same conditions as a private enterprise (EC, opinion , 8 November 2000, Jean-Louis Bernard Consultants, Rec., 492).
It is in its edition of September 11th that the national daily The echoes confirmed the information that the Government was going to raise the threshold below which public contracts could be concluded without being subject to advertising and competition requirements. This threshold would consequently increase from € 25,000 to € 40,000 excluding tax. Several elements must be examined: the origin of the re-evaluation and its expected effects (Point 1), maintaining a common sense obligation (Point 2) and a comparatist approach with the other Member States of the European Union (Point 3).