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.
This ord. October 16, 2015, National Council of Bars. No. 388596
In this case, the Council of State recalls it can not be urgent to suspend the order n ° 2015-899 of 23 July 2015 relating to public contracts since this text has not yet entered into force.
Context reminder :
Directive 2014/24 / EC of the European Parliament and of the Council provides for new rules for the award and execution of public contracts. This Directive must be implemented in national law by 18 April 2016 at the latest pursuant to Article 90 of the Directive.
Article 42 of the Law of 20 December 2014 on the simplification of the life of companies and introducing various provisions for the simplification and clarification of the law and administrative procedures authorized the Government to take any measure within the scope of the law " necessary to transpose Directive 2014/24 / EU (...) "by order. The order n ° 2015-899 of 23 July 2015 relative to the public markets was taken under this authorization
The European Commission has just communicated to the EU Member States the new thresholds for the formalized procedures that will be applicable from 1 January 2016 for conventional public procurement, to public sector special procurement, to public procurement in the defense sector or security and concession contracts.
These new thresholds will now be:
The Overseas Administrative Courts change their name
Decree No. 2015-1145 of 15 September 2015, published in the Official Journal on 17 September 2015, amending the Code of Administrative Justice, harmonises the name of the overseas administrative courts which, unlike the metropolitan administrative courts, are now all named by the name of the community in which they sit. This change does not affect the jurisdictions' jurisdiction.
Decree No. 2015-1163 of September 17, 2015 notes the procedural exemption thresholds contained in the Public Procurement Code (CMP) of EUR 15 000 to EUR 25 000 (excluding VAT) for contracting authorities (Article 28) and EUR 20 000 to 25 000 excluding VAT for contracting entities (Article 146) . Public purchasers can now enter "over-the-counter" contracts with the service providers of their choice without any advertising and competitive bidding, provided that the amount of annual benefits does not exceed this amount, the decree simply stating that it is advisable to "not systematically contract with the same service provider when there is a plurality of potential offers likely to meet the need" ... ... which, it will be understood, is useless, if not is to give oneself a good conscience.
CE 1st July 2015, OPH Loire Atlantique, req.n ° 384209
The unilateral amendment of the penalty system by the contracting authority after the choice of the contract holder affects a substantial part of the offer.
Having regard to its effects on the equilibrium of the contract, such a modification constitutes a defect of a particularly serious nature such as vitiating the consent of the contracting party and justifying the nullity of the contract.
Rule to remember:
A contracting authority may not modify a substantial element of the tender after the choice of the contract holder, as soon as it is irregular.
In this case, by a contract signed in October 2008, after a competitive dialogue procedure, Aareon France undertook to provide the Public Housing Office of Loire-Atlantique with a rental fleet management software package. , to assist in the use of this software package and to maintain it for five years. The delay in regard to the schedule of execution and the malfunctions noted had then led the DPO to terminate the contract to the exclusive wrongs of its co-contractor and to establish accordingly a settlement of liquidation of the market whose balance was debited from society because of the heavy penalties of delay. The Council of State rejects the application of the penalties on the grounds that the method of calculation of the penalties of delay and the modalities of their release were modified unilaterally after the award of the market to the holder without this one can not to oppose it.
CE 1 July 2015, Régie des eaux of the Belletrud Canal, n ° 383613
In this case, the Council of State provides useful information on how to calculate compensation for expenses incurred due to unforeseen constraints.
Rule n ° 1:
Where a public contract has been awarded on a fixed price basis, the contractor or subcontractor shall be entitled to compensation for expenses incurred as a result of unforeseen constraints, that is to say, exceptional and unforeseeable hardship. whose cause is external to the parties, if these subjections have had the effect of upsetting the general economy of the market.
In this case, an inter-municipal syndicate entrusted a company with the construction of a solar drying unit for the sludge of a wastewater treatment plant for a total and fixed amount of € 695,940 excluding tax. For the purpose of performing earthworks, the contractor has entered into a subcontracting contract in the amount of € 156,000 excluding tax. The subcontracting company subsequently lodged with the administrative court a request for the condemnation of the principal to pay him a sum of € 94,034.30 corresponding to the additional cost of the works which it bore, the soils having proved to be of a different nature from that analyzed by the soil survey carried out prior to the conclusion of the contract.
EC 26 June 2015, Minister of Defense, Req. No. 389599
As soon as the offer is irregular, the electronic signature must be established with certainty. The Council of State also recalls that an offer must be considered as irregular, which does not contain all the documents or information required by the documents of the consultation.
Rule 1: The electronic signature must be established with certainty
The rules for the use of electronic signatures in the markets are laid down in the decree of 15 June 2012 on electronic signatures in public markets.
Absence of nullity of a contract providing for an effective date prior to its notification in breach of Article 79 of the Code des Marches Publics
Reasons for nullity of a public contract: Lack of nullity of a contract providing for an effective date prior to its notification in breach of Article 79 of the Code des Marches Publics.
Nullity of the market in case of modification of the risks covered by the insurance contract after the signature of this one.
Rule n ° 1:
The Council of State considers that the parties who agree on a date of effect of the contract prior to its signature and its notification in breach of Article 79 of the Code des Marches Publics which provides that the contract must be notified before any commencement execution does not constitute a defect of a particular gravity justifying its invalidity.
Rule n ° 1: Precision on the notion of variant:
The Administrative Court recalls that an offer which involves a different method of execution than that provided for in the CCTP is a variant, even though its implementation allows the realization of a work in conformity with that requested by the public person in his CCTP.
Rule n ° 2: Limitation of the possibility for the candidates to propose variant offers being negotiated.
In a negotiating procedure, only tenders submitted before the deadline for submission of tenders may be negotiated.
The contracting authority can not therefore examine and then withhold a variant offer from a candidate, if he had submitted only a basic offer by the deadline for submission of tenders.
Rule n ° 1:
A delegated contracting authority must, in the exercise of its mission defined by the agreement of mandate which binds him to the master of work, to carry out the diligences which his principal is entitled to expect from a professional having accepted this mission .
In accordance with this principle, it is therefore the responsibility of a delegated project owner who is entrusted with the task of approving the general contract statement, to ensure that this document is not vitiated by errors or omissions which should not escape a professional.