Vignette dossier marchés publics

Public markets

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.

Acheteurs publics : vous pouvez désormais choisir librement votre avocat !

Public buyers: you can now freely choose your lawyer!

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).

Read more

Réponses aux marchés publics par des filiales d’un même groupe : offres irrégulières ou pas ?

Responses to public contracts by subsidiaries of the same group: irregular offers or not?

CE December 8, 2020, Métropole Aix-Marseille, n ° 436532

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.

Read more

Comportements de l’administration permettant de révéler une résiliation tacite du contrat

Administration behavior allowing tacit termination of the contract to be revealed

CE December 11, 2020, Copra Mediterranean Company, req. n °427616

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.

Read more

Le Conseil d’Etat consacre le droit pour un acheteur public de résilier un contrat irrégulier

The Council of State establishes the right for a public purchaser to terminate an irregular contract

CE July 10, 2020, Company Comptoir Négoce Equipment, req. n °430864

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).

Read more

L’établissement du solde du marché par le juge du référé provision

The establishment of the market balance by the judge of provisional summary proceedings

CE June 10, 2020, Sté BONAUD, req. n ° 425993

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 

Read more

Intérêt à contester la validité d’un contrat par le conseil régional de l'ordre des architectes

Interest in contesting the validity of a contract by the regional council of the order of architects

CE June 3, 2020, Department of Loire Atlantique, req. n ° 426938

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.

Read more

Avis d’attribution : quelles mentions obligatoires pour faire courir les délais de recours ?

Notice of award: what are the obligatory terms to apply the appeal periods?

CE June 3, 2020, Avignon hospital center, req. n ° 428845

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.

Read more

Recours en annulation d’un contrat de concession par un contribuable local : gare aux fausses joies !

Action to cancel a concession contract by a local taxpayer: beware of false joys!

CE March 27, 2020, MIH and others, req. n ° 426291

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.

Read more

Quels droits pour le sous-traitant tenu au remboursement d’une avance du fait d’une faute du titulaire du marché ?

What rights for the subcontractor required to repay an advance due to the fault of the contractor?

CE March 4, 2020, St Savima, n ° 423443

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.

Read more

Candidats évincés : quel droit à indemnisation en cas de recours à une procédure irrégulière ?

Evicted candidates: what right to compensation in the event of recourse to an irregular procedure?

CE February 28, 2020, Sté Régal des Iles, n ° 426162

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.

Read more