Folders of the month
An ousted candidate who has submitted an irregular offer may contest the award of the contract to an offer which is also irregular
The Council of State now considers that within the framework of a pre-contractual or contractual summary procedure, the fact that the offer of the ousted competitor is irregular does not prevent it from being able to take advantage of the irregularity of the offer of the company awarded the contract to obtain the cancellation of the procedure or the contract. In this hypothesis, the judge in summary proceedings cannot invoke the irregularity of the offer of the ousted candidate and must examine the regularity of the offer of the successful candidate.
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.
After more than a century, it is tempting to assert that the Martin jurisprudence (EC, 4 August 1905: Rec., EC 1905, pp. 749, J. Romieu) is dead and well buried. In the same vein, a slightly naive view of the state of the contentious administrative contracts would necessarily lead to welcoming the massive opening of legal remedies relevant to all third parties. However, five years after the highest administrative court opened the courtroom access of the judge of the validity of the administrative contract "to any third party" (EC, Ass., April 4, 2014, Department of Tarn-et-Garonne, Rec. ., EC, p.70, conclude B. Dacosta, AJDA, 2014, p.1035, A. Bretonneau and J. Lessi, BCJL 2014, p.316, note C. Fardet, CMP 2013, study 5, Ph. Rees, JCP G, 2014, Doc 732, P. Bourdon, RDP, 2014, P. 1175, note L. Janicot and J.-F. Lafaix, RFDA, 2014, P. 425, conclusion and note P. Delvolvé) it is up to us to take a critical look at the evolution of the litigation of third-party claimants. It is customary to say that "to know where we are going, we need to know where we come from", the study of third party access to the courtroom is obviously no exception.
The Council of State decides on the identification of a public contract tacitly terminated and on the office of the judge of appeal seized of a request for resumption of the contractual relations.
Teaching n ° 1: The behavior of the administration may be worth tacit termination of the public contract
The competence of the contracting authority to unilaterally terminate a contract is conventional (EC, Ass., 2 May 1958, Distillery of Magnac LavalLebon 246). In order to guarantee the specific features of public law, the contracting authority may terminate the execution of its contract for the future. General interest obliged, the public person must compensate his co-contractor at the risk of tainting the termination of illegality. As one of the general rules, unilateral termination nevertheless questions the respect of the binding force of the contract. In order to prevent it being dismissed too easily, the contract judge found it necessary that the termination should result from an express decision (CAA, Versailles, 18 April 2013, Getpartner International, req. No. 11VE02414).
I-The possibility of using CVs as a criterion for judging offers
Where the particular expertise of the persons performing the services provided for in the contract is of vital interest for the quality of its performance, the public purchaser may require tenderers to provide specific information concerning the professional skills or the experience of the agents they intend to assign to the performance of the contract. The public purchaser may request that these elements be substantiated by a curriculum vitae.
The procedure of the contractual summary allows to sanction the contracts which were concluded without respecting the obligations of advertising and putting in competition. Article L.551-13 of the Code of Administrative Justice (referred administrative contract) and Article L 1441-3 of the Code of Civil Procedure (referred pre-contractual judicial) specify that this remedy is possible only after the conclusion of the contract.
The persons empowered to refer the matter to the interlocutory judge are those who have an interest in concluding the contract and who may be adversely affected by breaches of the advertising and competitive bidding obligations to which these contracts are subject.
According to its classic definition, a public contract is a contract, that is, an agreement by which one or more persons bind themselves to one or more others to give, to do or not to do something, which must meet the needs of the administration for supplies, services and works.
Provision of television services, telephone and Internet access to patients of a Hospital Center: The State Council decides for the DSP
A recent decision by the Council of State on a public service delegation agreement concerning the provision of television, telephone and Internet access services to patients at a hospital center made it possible to clarify finally the legal regime of these benefits.
After a suitable procedure, an OPHLM notified a rejection letter to the candidate whose offer was not accepted on May 5 by fax and then signed the contract on May 12.
The information of the candidates who were ousted before the signature of the contracts subject to the Code des Marches Publics and the order of 6 June 2005