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.

Possibilité de modifier les règles de détermination des prix par avenant

Possibility of modifying the pricing rules by endorsement

CE 20 December 2017, Sté Area Impianti, 408562

This judgment provides an opportunity to recall the conditions under which an amendment may change the rules for determining the price of a convention and the precautions that should be taken in case of drafting several successive amendments or before signing an amendment.

As a reminder, as part of work to bring an incineration plant up to standard, an inter-municipal association for the recovery of household waste has entered into several successive amendments with the company holding the contract to modify the price revision formula as well as some works. The last rider removed the price revision clause and introduced a firm price. The holder of the contract then decided to engage the responsibility of the Union in an attempt to recover the amounts due for the price revision, arguing in particular a defect of consent of not having drawn his attention to the clause of the last addendum to the agreement. market which removed the price revision clause in favor of a firm price mechanism.

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La signature du décompte général et définitif ne fait pas obstacle au paiement direct d’un sous-traitant

The signing of the general and final settlement does not preclude the direct payment of a subcontractor

CE 23 October 2017, Colas Ile-de-France Normandy, 410235

Rule n ° 1: The subcontractor must send his request for direct payment before signing the DGD

In order to obtain the direct payment by the contracting authority of all or part of the services he has performed under his subcontracting contract, the regularly approved subcontractor must send " in proper time His request for direct payment to the main contractor, the contract holder, and to the developer.

The Council of State lays down the rule that a request sent by the subcontractor to the main contractor and the contracting authority before the signature of the general and final settlement of the contract must be regarded as made " in proper time ".

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Offre anormalement basse : une offre « considérablement » inférieure au budget prévisionnel peut être considérée comme suspecte

Abnormally low offer: an offer "considerably" lower than the estimated budget can be considered as suspect

CJEU 19 October 2017, Agriconsulting Europe SA, Aff.C-198/16

In the absence of a definition of the concept of 'abnormally low tender' or rules allowing the identification of such an offer, it is up to the contracting authority to determine the method used to identify abnormally low tenders (see by analogy, CJEU 18 December 2014, Data Medical Service, C-568/13, paragraph 49), provided that this method is objective and non-discriminatory (CJEU 27 November 2001, Lombardini and Mantovani, C-285/99 and C- 286/99, paragraphs 68 and 69).

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La notion de pouvoir adjudicateur et les limites de l’exception "in house"

The notion of the contracting authority and the limits of the "in house" exception

CJEU October 5, 2017, LitspecMet UAB, Aff. C-567/15

This case gives the opportunity to clarify the concept of the contracting authority but also to recall the limits of the exception "in house"

Rule No 1: the notion of the contracting authority

A Lithuanian court has referred a preliminary question to the CJEU as to whether a commercial company, VRLD, a subsidiary of 100% of the Lithuanian State Railway Company, which is a contracting authority and achieves around 90% of its turnover with its parent company is itself a "public body" contracting authority within the meaning of point 9 of Article 1 of Directive 2004/18 / EC (1).

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Précisions sur le caractère manifestement excessif des pénalités de retard

Clarification of the manifestly excessive nature of late penalties

 CE 19 July 2017, interdepartmental psychiatric center for children and adolescents, n ° 392707

The interdepartmental hospital center for child and adolescent psychiatry (CHIPEA) entrusted GBR Ile-de-France with a work mission consisting of the transformation of a medical and psychological center part-time therapeutic home for children and adolescents. The work had been received three years late. As a result, CHIPEA had notified the company GBR Ile-de-France, a general account containing late penalties in the amount of 663.686,66 euros HT The company GBR challenged this count before the Administrative Court of Melun. The latter considered that the delay in the commencement of the project was attributable to the company only as of November 27, 2008 and not October 10, 2007 as supported by CHIPEA but was responsible for all delays execution, he has therefore reduced the amount of the late payment penalties to 308,025.55 euros.

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Précisions utiles sur les modalités d’appréciation de la condition d’urgence à suspendre l’exécution d’un contrat

Useful information on how to assess the condition of urgency to suspend the performance of a contract

CE 18 September 2017, M.AG ... R, 408894

In this case, the Council of State recalls that the members of the deliberative body of a territorial collectivity or a group of territorial collectivities which concluded an administrative contract are admissible to form before the judge of the contract an appeal in contestation the validity of the latter and may include in this appeal a request for the suspension of its execution on the basis of Article L. 521-1 of the Code of Administrative Justice.

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Possibilité d’invoquer pour la première fois en cause d’appel l’enrichissement sans cause

Possibility of invoking for the first time in the case of appeal unjust enrichment

CE 19 JULY 2017, Aéroports de Paris company, N ° 401426

In accordance with the provisions of Article L.571-14 et seq. Of the French Environmental Code concerning the financial participation of airport operators' companies in the measures to mitigate noise pollution, Aéroports de Paris (ADP), concluded on October 22, 2009 an agreement with the intercommunal hospital center of Villeneuve Saint-Georges on financial assistance for the realization of sound insulation works of its buildings.

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La sélection d’une variante résultant d’une modification substantielle de l’offre de base en cours de négociation est illégale !

The selection of a variant resulting from a substantial modification of the basic offer being negotiated is illegal!

 CAA Bordeaux, June 19, 2017, Lafitte Landscape Company, n ° 15BX02593

This is a case won by Cabinet Palmier-Brault-Associés. As part of the construction of a sports complex, a municipality had awarded the lot "sports fields" to Lafitte Landscape. Sée Guichard, whose bid was unsuccessful, challenged the validity of the contract. The administrative court annulled the contract and ordered the municipality to pay him compensation for the damage suffered. The company that is the owner of the contract has appealed the judgment rendered at first instance, as well as the municipality.

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La perte d’une subvention et une situation financière critique peut justifier la résiliation d’un marché public pour motif d’intérêt général

The loss of a grant and a critical financial situation may justify the termination of a public contract for reasons of general interest

CAA Marseille, 12th of June 2017, MA, req.n ° 16MA01279

One commune had entered into a project management contract with a group of companies for the construction of a cloakroom and a platform in the municipal stadium. The group began to work, until the final draft, before the municipality terminates the market for a reason of general interest. The representative of the group then filed an application with the administrative court of the municipality to repair the damage resulting from the termination. The administrative court having rejected this request, the agent of the grouping appealed.

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La « clause Molière » imposant l'usage du français dans les contrats publics est illégale

The "Molière clause" imposing the use of French in public contracts is illegal

Interministerial Instruction of 27 April 2017 on the deliberations and acts of local authorities imposing the use of French in the conditions of execution of contracts

Many public purchasers impose in their public markets a clause called "Molière", requiring that the personnel assigned to the execution of a public contract speak French. This practice is presented as a way to combat "social dumping" by preventing companies from using posted workers. Criticized, it has just been condemned by an interministerial instruction intended for the prefects within the framework of the exercise of their control of legality of the deliberations and acts of the territorial collectivities.

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