Public service delegations
Order No. 2016-65 of 29 January 2016 on concession contracts and Decree No. 2016-86 of 1 February 2016 define the rules for the award and execution of public service delegations. The Cabinet Palmier - Brault - Associés decrypts for you the jurisprudential news of the delegations of public service.
Rule n ° 1:
The Council of State considers that the provisions of Article L. 1411-1 of the general code of local authorities do not require the delegating authority to set a deadline for the validity of offers. In other words, it is no longer necessary to set a deadline for the validity of tenders for public service delegations.
Rule n ° 2:
In the event that the competition regulation issued by the delegating authority provides for such a deadline, the deadline thus fixed may be extended only with the agreement of all the candidates admitted to submit an offer, without it is necessary to set a new deadline. The agreement of the candidates may result from the candidates' pursuit of negotiations with the delegating authority.
Pursuant to the provisions of Articles L. 5214-21 and L. 5214-1-1 of the General Code of Local Authorities, a community of municipalities is, from the outset, automatically substituted for a syndicate of municipalities whose scope coincides with the for all the competences hitherto exercised by this union, even if these competences do not appear in the statutes of the community of communes. Therefore, on the date of creation of the community of communes, the union of municipalities becomes incompetent to conclude a delegation of public service of distribution of drinking water.
Illicitness of a contractual clause which ignores the principle of inalienability of the public domain.
A clause of a public service delegation contract which provides for the transfer to a private person, without prior decommissioning or decommissioning, of dependencies in the public domain, is of an unlawful nature which must be taken up ex officio by the administrative judge.
Can we accept an offer that does not meet the formalism of the consultation regulation in a public service delegation?
In law of public service delegations a consultation regulation is not obligatory, nor even mentioned by the texts, although the delegating authority is held there if it decides to give in this form the information necessary for advertising and in competition. The Conseil d'Etat considers, on the one hand, that the collectivity can modify its requirements by bringing into the process of negotiation adaptations of a limited scope, objectively necessary to the service and presenting between the companies remaining in competition no discriminatory character (EC July 29, 1998, Dalloz Sirey Publishing House, June 21, 2000, Syndicat intercommunal de la Côte d'Amour and the Guérande peninsula); on the other hand, that the public authority may negotiate with a candidate whose offer is not accompanied by all the documents or information required " if this insufficiency, on the one hand, does not prevent the conformity of the tender from the requirements of the specifications and is not likely to have an influence on the comparison between the offers and the choice of candidates who will be admitted to the negotiation (December 15, 2006, Corsica Ferries Company). The existence of a negotiation which is not the common law of the markets explains this difference. It must lead the disputed judge to question the validity of an offer and can not confine himself to the observation of the irregularity of the offer to question the importance and the impact of non-compliance.
EC 24 October 2008, Syndicat intercommunal water and wastewater of Mayotte, n ° 300034
The Council of State refuses to cancel a public service delegation procedure if the irregularity found has not had any effect on the successful tender.
In the present case, according to the applicant company, the course of the proceedings had been vitiated by the admission of a company which did not have the required technical, professional and financial capacities. The Conseil d'État considers that "the unlawful admission of a company to negotiate an offer does not necessarily entail an irregularity in the conduct of the procedure, since the offer made by the company is not accepted by the delegating authority ". This judgment is part of the current trend of case law which is to limit the excessive use of pre-contractual summary proceedings.