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.
Rule n ° 1:
The Conseil d'Etat recalls that the pre-contractual summary procedure can be introduced by any unsuccessful candidate but also by any candidate who has been prevented from participating in the competitive bidding procedure and who warrants a professional specialty in relation to the subject of the contract (reminder of the solutions identified by CE 8 August 2008, Burgundy region, n ° 307143- CE 5 August 2009, Région Center, n ° 307117).
Modification of the consultation file during the procedure and the obligation to advertise and put in competition
Rule n ° 1:
When the contracting authority decides to make "significant" changes to the consultation file before the deadline for submission of tenders, it is obliged to issue a corrigendum notice and to allow the candidates a new competitive time to take note of changes and submit an offer
Rule n ° 2:
When the contracting authority decides to make "minor" amendments to the consultation file before the deadline for submission of tenders, it must respect the deadline provided for in the consultation rules to this effect to allow sufficient time for candidates to see the changes and submit an offer.
It is also possible to extend the deadline for submitting tenders by a few days by alerting the candidates who have already withdrawn a consultation file and publishing a corrective notice for the others (CE 9 February 2004, Communauté urbaine de Nantes, Req. No. 259 369).
Rule n ° 1:
Article 35 of the Code des Marches Publics authorizes the contracting authority to negotiate with the candidates who have submitted an offer. This negotiation can relate to all the elements of the offer, especially the price. The contracting authority must indicate in the specifications the different points on which the negotiations may be carried out and the details of the negotiation.
Rule n ° 2:
Changes to the specifications that do not affect the substance of the candidates' offers may be considered as modifications of details.
Failure to comply with the advertising and competitive bidding measures does not constitute an irregularity of such gravity that the judge must dismiss the contract to settle the dispute
Rule n ° 1:
The Council of State recalls the rule that when the judge is seized of a dispute relating to the execution of a contract, the parties to this contract can not invoke a breach of the rules of advertising and competition for attempt to evade their contractual obligations.
Rule n ° 2:
The contract resulting from the application of a tacit renewal clause has the character of a new contract, the awarding of which must normally be preceded by an advertising and tendering procedure.
Pursuant to the provisions of Article 1 of the Public Procurement Code, contracts concluded for value between contracting authorities and public or private economic operators to meet their needs for works, supplies or services are public authorities subject to the provisions of this code. The Council of State considers that the convention which provides benefits of operating a ticket and promoting a festival against the payment of a price in the abandonment of revenue and the payment of an annual sum must be considered a public service contract and not a public service delegation.
The subcontractor who has been accepted and whose terms of payment have been approved by the owner, can be paid directly by the main contractor
Under Article 6 of the Outsourcing Act of 31 December 1975, the direct subcontractor of the contract holder who has been accepted and whose terms of payment have been agreed by the contracting authority is paid directly by him for the part of the market which he ensures.
If it results from these provisions that the approved subcontractor has a right to the direct payment by the contracting authority, these do not prevent that the payment of this subcontractor is done directly by the holder of the contract thus extinguishing the claim of the subcontractor on the contracting authority.
What deadlines do unsuccessful candidates have to respect in order to request the cancellation or termination of the contract signed with the competitor?
In a judgment dated 16 July 2007, Sté Tropic Travaux Signalisation, the Council of State laid down the rule that an unsuccessful candidate has two months after the publication of the award notice to lodge an appeal challenging the validity of the contract and request cancellation or termination of the contract. It is for the judge hearing such findings, when he finds that there are defects vitiating the validity of the contract, to assess the consequences. It is incumbent upon it, having taken into consideration the nature of any illegality committed, either to pronounce the termination of the contract or to modify some of its clauses, or to decide on the continuation of its execution, possibly subject to regularization measures. by the contracting authority, either to award compensation for compensation for the rights violated, or finally, after verifying whether the cancellation of the contract would not unreasonably prejudice the general interest or the rights of the contracting party, to cancel, totally or partially, if necessary with a delayed effect, the contract.
Termination of a public service contract shall be subject to a termination statement which shall be drawn up by the contracting authority and notified to the holder within two months after the effective date of the termination of the contract. But what if the contracting authority does not draw up the cancellation? In a judgment dated May 4, 2011, Sté COVED, the Council of State recalls the procedure to follow.
Step 1 : In the absence of production of the termination statement, the contractor is required to give notice to the contracting authority to draw up the account by submitting a statement of claim.
Compensation rules to be respected in case of unilateral termination of the public contracting party
If, in the context of a unilateral termination for reasons of general interest, the contract may provide that the private contracting party will be compensated for less than the actual loss suffered, the prohibition on public authorities to grant bene- it is the same when the other party is a public person.
" Considering, it is true, that under the general rules applicable to administrative contracts, the granting authority may always, for reasons of general interest, terminate a concession contract, subject to the concessionary indemnity rights and that the the extent and the terms of such compensation may be determined by the terms of the contract, provided that it does not result, to the detriment of a public body, a manifest disproportion between the compensation so fixed and the amount of the loss resulting for the concessionaire from the expenses he incurred and the gain from which he was deprived; that this principle, stemming from the prohibition on public persons from giving gifts, does not apply to private persons, but there is nothing to prevent such stipulations from providing for compensation less than the amount of the loss suffered by the private contractor of the administration; that, therefore, in relying, to rule on the conclusions of the CHAMBER OF COMMERCE AND INDUSTRY OF NIMES, UZES, BAGNOLS, LE VIGAN relating to the compensation of the value of the investments financed on its own funds, on a principle that the contractual stipulations could not have the effect, irrespective of the status of the contracting party of the administration, either to exclude any compensation from it, or to provide compensation manifestly disproportionate to the damage suffered, the court administrative appeal of Marseilles has made an error of law;
Public procurement: obligation to control the capacities the technical and professional financial capacities of the candidates
The contracting authority is obliged to check, at the examination stage, the technical, financial and professional capacities of the candidates.
Article 45 of the Public Procurement Code states that: The contracting authority may only require candidates to submit information or documents enabling them to assess their experience, professional, technical and financial capacities as well as documents relating to the powers of the persons empowered to hire them. (...)".