Order No. 2015-899 of 23 July 2015 on public procurement and Decree No. 2016-360 of 25 March 2016 define the rules for the award and execution of public contracts. The Cabinet Palmier - Brault - Associés decrypts for you the jurisprudential news of the public markets.
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.
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.
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.
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).
The Council of State recalls the conditions under which a local authority or a public cooperative institution may apply for the award of a public contract to meet the needs of another public person.
Teaching n ° 1: The admission in principle of the candidacy of the public persons for the obtaining of the public contracts
In its opinion dated November 8, 2000, Sté Jean-Louis-Bernard Consultants, the Council of State has already had the opportunity to recall that no text or principle prohibits, because of its nature, a public person, to apply for the award of a public contract.
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).
In this case, the Council of State recalls the importance for public purchasers to check the financial capacity of the successful tenderer otherwise the contract may incur cancellation.
Teaching n ° 1: Obligation for the public purchaser to control the financial capacities of the prospective beneficiary of the contract
The Council of State has already had the occasion to remind several times that the public purchaser has the obligation to control the professional, technical and financial capacities of the candidates for the award of a public contract (EC 12 November 2015 SAGEM, No. 386578, EC 26 March 2008, Urban Community of Lyon, application No. 303779). In a judgment of March 15, 2019, SAGEM, No. 413584, the State Council also recalled that if the economic operator intends to avail the financial capacity of another economic operator, his application must necessarily contain a commitment formalized of it.
In this case, the Council of State provides interesting clarifications on the one hand on the ways in which an economic operator can avail himself of the financial, technical and professional capacities of another economic operator; on the other hand on the limits according to which it can value its offer.
Teaching n ° 1: Conditions under which an economic operator may avail himself of the capacities of another economic operator
The Council of State has already had the occasion to remind several times that the public purchaser has the obligation to control the professional, technical and financial capacities of the candidates for the award of a public contract (EC 12 November 2015 SAGEM, No. 386578, EC 26 March 2008, Urban Community of Lyon, application No. 303779). and that in the event of a dispute, he must provide proof that he has actually been able to check the technical and financial capacities of the candidates as well as the evidence of this control: " It appears from the order under appeal that, in order to allow the plea that the successful group did not justify the requisite professional and technical skills and not have to resort to external means, the pre-contractual judge of the administrative court of Dijon was based on the absence of sufficient elements, in particular in the absence of the production by the department or grouping attribute, during the investigation, the application file of the grouping, so that it is checked the assessment that the department was required to make on the group's application (September 17, 2014, Delta Process Company, # 378722). These obligations also apply to the awarding of service concessions.
Contract of private law subscribed by a municipality: absolute nullity in case of incompetence of the signatory!
In this case, the Court of Cassation considers that a loan contract subscribed by the mayor of a municipality which is not expressly empowered by its municipal council is tainted absolute nullity unsusceptible regularization and can be questioned at any moment by the municipality. A good way therefore for municipalities to renegotiate their loan agreement and failing agreement banks to denounce without being required to repay the deadlines at least, if the mayor has acted without regular delegation.
For the first time, the Council of State applies the procedure of the unspoken DGD to condemn a local authority to pay a company holder the payment of additional amounts of nearly € 250,000, almost equal to that of the market , as compensation for damages suffered as a result of the numerous disturbances suffered during the execution of the contract.
Cabinet Palmier-Brault Associés is pleased to be at the origin of this judgment on behalf of the Company Self Saint-Pierre-et-Miquelon.