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.
In this case, the Council of State recalls the importance for public purchasers to check the financial capacity of the successful tenderer otherwise the contract may incur cancellation.
Teaching n ° 1: Obligation for the public purchaser to control the financial capacities of the prospective beneficiary of the contract
The Council of State has already had the occasion to remind several times that the public purchaser has the obligation to control the professional, technical and financial capacities of the candidates for the award of a public contract (EC 12 November 2015 SAGEM, No. 386578, EC 26 March 2008, Urban Community of Lyon, application No. 303779). In a judgment of March 15, 2019, SAGEM, No. 413584, the State Council also recalled that if the economic operator intends to avail the financial capacity of another economic operator, his application must necessarily contain a commitment formalized of it.
In this case, the Council of State provides interesting clarifications on the one hand on the ways in which an economic operator can avail himself of the financial, technical and professional capacities of another economic operator; on the other hand on the limits according to which it can value its offer.
Teaching n ° 1: Conditions under which an economic operator may avail himself of the capacities of another economic operator
The Council of State has already had the occasion to remind several times that the public purchaser has the obligation to control the professional, technical and financial capacities of the candidates for the award of a public contract (EC 12 November 2015 SAGEM, No. 386578, EC 26 March 2008, Urban Community of Lyon, application No. 303779). and that in the event of a dispute, he must provide proof that he has actually been able to check the technical and financial capacities of the candidates as well as the evidence of this control: " It appears from the order under appeal that, in order to allow the plea that the successful group did not justify the requisite professional and technical skills and not have to resort to external means, the pre-contractual judge of the administrative court of Dijon was based on the absence of sufficient elements, in particular in the absence of the production by the department or grouping attribute, during the investigation, the application file of the grouping, so that it is checked the assessment that the department was required to make on the group's application (September 17, 2014, Delta Process Company, # 378722). These obligations also apply to the awarding of service concessions.
Contract of private law subscribed by a municipality: absolute nullity in case of incompetence of the signatory!
In this case, the Court of Cassation considers that a loan contract subscribed by the mayor of a municipality which is not expressly empowered by its municipal council is tainted absolute nullity unsusceptible regularization and can be questioned at any moment by the municipality. A good way therefore for municipalities to renegotiate their loan agreement and failing agreement banks to denounce without being required to repay the deadlines at least, if the mayor has acted without regular delegation.
For the first time, the Council of State applies the procedure of the unspoken DGD to condemn a local authority to pay a company holder the payment of additional amounts of nearly € 250,000, almost equal to that of the market , as compensation for damages suffered as a result of the numerous disturbances suffered during the execution of the contract.
Cabinet Palmier-Brault Associés is pleased to be at the origin of this judgment on behalf of the Company Self Saint-Pierre-et-Miquelon.
The Disputes Tribunal recalls the rule that the parties to a contract can not derogate from the rules of public order relating to the division of powers between the two levels of jurisdiction.
Rule # 1: The clauses of a contract can not derogate the division of powers between the two levels of jurisdiction.
In its decision of December 10, 2018, Isola Development Company 2000 v / Syndicat mixte for the development and operation of Isola 2000 station, No. 4143, the Tribunal des Conflits recalls that the parties to a administrative contract can not choose the order of jurisdiction competent to decide their dispute, even though they would have agreed to an attribution of jurisdiction for the benefit of the judicial judge.
Unsuccessful candidates: compensation for damages that have a direct causal link with irregular eviction
The State Council lays down the rule that when a candidate for the award of a public contract seeks compensation for the damage which he considers to have suffered as a result of the irregularity which, in his opinion, affected the procedure which led to if it is removed, it is for the judge, if this irregularity is established, to verify that there is a direct causal link between the resulting fault and the damage for which the plaintiff seeks compensation.
Suspension recited: urgency to suspend a contract concluded by mutual agreement for unjustified technical reasons!
The State Council gives interesting indications on three points:I) on the arrangements for assessing the condition of urgency to suspend the execution of a public contract, (II) on the technical grounds which allow the award of a public contract without advertising or call for competition and finally (III) on the risks of opting for an excessive duration of the market.
Teaching n ° 1: new details on how to assess the condition of urgency to suspend the execution of a public contract
As a reminder, in its judgment of 18 September 2017, MH et al., The Conseil d'Etat has already had the opportunity to recall that the condition of urgency must be assessed solely in the light of the consequences of the performance of the contract of which the suspension is requested and not in the light of possible irregularities that may vitiate its award procedure (EC 18 September 2017, MH et al., No. 408894).
If the holder of a contract terminated improperly can claim compensation for the loss of the net profit of which he has been deprived, it is for him to establish the reality of the damage. This judgment provides an opportunity to determine the terms of compensation for damages suffered in the case of a contract with purchase orders they include a minimum value or quantity or not.
Teaching # 1: How to determine the harm suffered in the purchase order markets?
In a judgment dated October 10, 2018, sté Dr Jacques Franc, the State Council has just considered that in the event of a market with orders irregularly terminated which has a minimum in value or quantity, the loss of profits is certain in respect of this guaranteed minimum.
This judgment is interesting because it allows to recall the modalities of appreciation of the utility of a request for extension of an expert measure by the administrative judge.
In this case, a municipality, as a client faced with disorders affecting the house of association life he had built, filed a referral to the administrative court ten days before the expiry of the deadline. of the ten-year guarantee, October 7, 2016, when the acceptance took effect on October 17, 2006.
This judgment gives the opportunity to recall that the non-respect of the formalism of the statement of claim leads to the inadmissibility of the appeal.
As a reminder, an agglomeration community has signed a contract with a consortium for the rehabilitation of a wastewater treatment plant. In the course of execution of the contract, the said group claimed an increase in its remuneration to which the agglomeration community refused to grant. The members of the project management group then decided to appeal to the administrative court to condemn the agglomeration community to pay them the sums claimed.