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.
The purchase of legal services has long been considered incompatible with the rules for awarding public contracts, given the legislation applicable to the profession of lawyer and their ethical obligations (Law No. 71-1130 of December 31, 1971 amended on reform of certain judicial and legal professions).
Directive 2014/24 / EU of February 26, 2014 on the award of public contracts excluded from its scope the contracts for legal representation services or advice related to such representation as well as the services of legal advice for an amount less than € 750,000 excluding tax (articles 4 and 10 of Directive 2014/24).
The Council of State considers that if two different legal persons constitute in principle separate economic operators, they must nevertheless be regarded as one and the same tenderer when the public purchaser observes their lack of commercial autonomy, resulting in particular from the close links between their shareholders or managers, which can be manifested by the total or partial absence of distinct resources or the similarity of their offers for the same lot.
In this judgment, the Council of State specifies the cases in which a contract must be regarded as tacitly terminated when, by his behavior, the public person must be regarded as having decided to terminate, unequivocally, the contractual relations.
What you must remember :
Point n ° 1: The termination of a contract results in principle from an express decision of the contracting public entity
The termination of a public contract results in principle from an express decision of the contracting public entity.
The Council of State establishes the right for a public purchaser to terminate an irregular contract
In this judgment, the Council of State specifies the conditions under which a public purchaser can unilaterally terminate a contract tainted with irregularity as well as the terms of compensation of the co-contractor.
Palmier-Brault-Associés is very honored to be at the origin of this jurisprudential advance!
What you must remember :
Point n ° 1: The textual consecration of the unilateral termination provision for reasons of general interest
In its judgment of July 10, 2020, the Council of State first of all recalls the jurisprudential principle according to which under the general rules applicable to administrative contracts, the contracting public entity can always, for a reason of general interest, unilaterally terminate such a contract, subject to the rights to compensation of its co-contracting party (CE 2 May 1985, Distillerie de Magnac-Laval, Lebon, p.246).
In its judgment of June 10, 2020, Sté BONAUD, the Council of State recalls that in application of article 13.4.2 of CCAG-TX, the holder of a public works contract can seize the administrative judge including via a provisional interim payment if, 30 days after the notification of the formal notice to the public purchaser for the establishment of the market statement, the latter still has not produced this account being then specified that the production of said counting during the proceedings does not make the request lose its object
Interest in contesting the validity of a contract by the regional council of the order of architects
The National Council of Architects and the Regional Council of the Order of Architects have standing to contest the validity of a contract entered into in violation of Law No. 77-2 of the Law of January 3, 1977 on architecture. On the other hand, they have no quality to contest the reasons retained by a public buyer to legally resort to a design-build contract.
The bottom line: The publication of an award notice which mentions both the conclusion of the contract and the terms of its consultation makes it possible to start the period for appealing against the contract, regardless of whether it is does not indicate the date of conclusion of the contract.
When a local taxpayer disputes the validity of a contract, it is his responsibility to establish that the agreement or the clauses whose validity he disputes are likely to have significant consequences on the finances or the heritage of the community. The Council of State also specifies the possibility of claiming the cancellation of an already terminated contract.
In this case, the Council of State recalls that when a public contract is terminated before the advance can be reimbursed by withholding tax on the services due, the public buyer can obtain the reimbursement of the advance paid to the contractor or its subcontractor subject to the expenses they have incurred and which correspond to services provided on the market and actually carried out. And when the subcontractor is obliged to reimburse the advance due to a fault on the part of the holder, he may incur his liability up to the costs incurred for the performance of the services envisaged.
In this case, the Council of State provides useful details on the extent of the right to compensation of an ousted candidate when the irregularity affects the very choice of the procedure for awarding a contract launched by the public purchaser , as for example, in the event of irregular use of the competitive dialogue procedure for the award of a public contract or, as in the present case, in the award of a contract according to the procedure of delegation of public service to place of a public procurement procedure.