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.
Article 28 of the Code des Marches Publics authorizes the contracting authority to negotiate with candidates who have submitted an offer. This negotiation can relate to all the elements of the offer, especially the price.
In this case, several rules must nevertheless be respected:
Rule n ° 1:
The negotiation must be expressly announced either in the notice of advertisement or in the regulation of the consultation (TA Toulouse, Ord.23 November 2010, Sté Vitaris Response SAS, n ° 1004565).
The contracting partner of the administration can now contest the decision to terminate his contract
The Council of State now authorizes the contracting partner of the administration to challenge the decision to terminate his contract; on the other hand, to request the resumption of contractual relations within a period of two months from the notification of the decision. The judge checks whether the termination measure is vitiated by defects relating to its regularity or its merits.
Hypothesis n ° 1 : the decision to terminate is tainted with defects in its regularity. In this case, the judge will determine whether the alleged defects are likely to give entitlement to compensation.
Subcontracting and direct payment: the State Council reinforces the payment guarantees of the subcontractor!
CE 21 February 2011, Urban Community of Cherbourg, req. No. 318364
The difficulties in the financial relations between the market-holders and their subcontractors have existed for a long time and are natural between partners of economic weight, often very unequal. In order to fight against the real or induced failures of the main enterprises, the law n ° 75-1334 of 31 December 1975 relating to subcontracting set up an original system of protection of the financial guarantees of the first-tier subcontractor, notably to through the direct payment procedure against the owner of the work materializing his concern to involve him directly in the protective device. In a decision of 21 February 2011, Cherbourg Urban Community, the State Council intends now to make a strict application of this protection scheme in favor of subcontractors.
From what threshold can we consider that an endorsement upsets the general economy of the contract? Should we assess the increase per lot or in relation to the total amount of the transaction?
Article 20 of the Code des Marches Publics recalls that, except in the case of unforeseen technical constraints not arising from the parties, it can not upset the economy of the market or the framework agreement, nor change its purpose. No national or Community text sets a threshold beyond which an endorsement would upset the economy of the contract. The measure of the upheaval is therefore, as it is, a question of a species, left last to the discretion of the judge on appeal by a third party. In his conclusions on the decision of the Council of State, July 30, 2003, Commune de Lens, the Commissioner of the Government Denis PIVETEAU summarizes the state of the case law: "For the case law to allow hesitation, it is necessary in practice that the increase does not exceed 10 to 20 % "
In a decision of the Council of State of 19 January 2011, SARL Enterprise Matéos, the Council of State recalls firstly, that there is no quantitative threshold to assess the upheaval of the general economy of the contract. On the other hand, it is appropriate to assess the impact of the increase not on a batch basis but on the total amount of the contract.
CE January 12th, 2011 Company OTV France, Req.n ° 337889
Rule n ° 1: It is not possible to ask an expert to pronounce on questions of a legal nature !!
In a judgment of 12 January 2011 Société OTV France, no. 337889, the Conseil d'Etat recalls the rule according to which it is not possible to ask a Judicial Expert to pronounce on questions of a legal nature.
At issue here was an order confiding to the Judicial Expert the following mission: " research and specify the contractual links between the parties, describe the tasks assigned by the owner to each of the builders (...) and if possible include in its report contracts, riders, service orders and any other useful documents ; specify in particular whether the contract with the company OTV France included for it the obligation to set up such or such type of foundations ".
The Council of State will sanction this order on the grounds that measures of inquiry can not relate to questions of law:
The State Council specifies the conditions of payment of the sums due to the company whose contract has been terminated
In the event of the termination of a contract at the expense and risk of the contractor, the settlement of this contract can not take place before the substitute contract concluded with another company has been executed and accepted and the general statement of this contract does not apply. has become definitive. The public person may not, however, avail himself of this rule when he renounces the award of a substitute contract to refuse the settlement of his contractual debts in respect of the holder of the terminated contract.
Is the holder of the contract obliged to continue the performance of a contract resulting from a tacit renewal clause?
In a judgment dated November 10, 2010, Municipality of Palavas-les-Flots, n ° 314449, the Council of State comes to provide useful details on this delicate issue that arises repeatedly to contract holders. The administrative court considers that clauses of tacit renewal contained in public contracts or in public service delegations can not be "regularly implemented". In other words, and this is all the interest of the judgment, the company is not obliged to continue the contract resulting from the application of a clause of tacit renewal!
The General Directorate of Public Finance has just published an instruction of 2 November 2010, No. 10-027-M0, on subcontracting in public procurement. It deals with the different themes concerning subcontracting and allows a synthesis of the different problems encountered both as regards the implementation and the execution of subcontracting. To directly access the instruction click here.
In this case, the State Council recalls that the delegated contracting authority must perform the diligences that his client is entitled to expect from a professional who has accepted this assignment ". Specifically, for the High Jurisdiction, when the approval and the notification of a general account enters the mission of the delegated project owner, it belongs to this one to ensure that this document is not tainted with errors or omissions that should not escape a professional ". Otherwise, he is liable in case of error in the general count. The delegated contracting authority, which is responsible for conducting legal proceedings on behalf of its principal, must also perform all due diligence in accordance with applicable legal provisions. In the case tried, the agent of the city of Mantes-la-Jolie (Yvelines, 43,300 inhabitants) had it seemed not provided, with his letter of registration of a claim of the community on the account of a company placed in receivership (holder of several lots of a works contract), the necessary details and supporting documents. CAA failed to ascertain whether the delegated contracting authority had performed its duties and thus erred in law. The Council of State has therefore annulled the judgment.
CE 31 May 2010, DPO of the Strasbourg Urban Community, n ° 313184
The OPHLM of the Strasbourg urban community, which became OPH, entrusted to SMC Servitherm, to whose rights IDEX Energies comes, three batches of maintenance of individual heating and hot water production equipment in the housing managed by the Office. As the Office terminated the contract at the company's expense, it applied to the Strasbourg TA to order the Office to pay the balance of the contract plus interest at the legal rate.