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.

Une publication appropriée est suffisante pour déclencher le délai de recours des tiers contre un contrat administratif !

An appropriate publication is sufficient to trigger the appeal period of third parties against an administrative contract!

TA Montpellier, April 20, 2017, Mr. X, No. 1506220

SNCF Réseau (formerly RFF) has entered into a partnership agreement with SAS Gare de la Mogère with a view to establishing a multi-modal exchange hub, approved by a decree, as well as a indemnity agreement providing for the conditions for prosecution. project in case of appeal. Mr X brought an application for the annulment of the partnership contract and the indemnity agreement before the administrative court, which in this case rules on the publicity measures likely to trigger the appeal third party against an administrative contract.

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Tierce opposition : attention : le cocontractant du pouvoir adjudicateur n’est pas représenté par celui-ci

Third objection: warning: the contracting partner of the contracting authority is not represented by him

CE April 19, 2017, Company ACS Production, n ° 401359

A semi-public company, acting for and on behalf of a municipality under a mandate, had launched a tendering procedure for the award of a works contract. This contract was awarded to SMC2. The company ACS Production, a candidate for the award of the contract, asked the administrative court to cancel the contract. This motion having been rejected, ACS Production appealed the judgment, which was quashed by the Administrative Court of Appeal. The successful tenderer then lodged an appeal with the third party. In a second judgment, the Administrative Court of Appeal declared its first judgment null and void and dismissed ACS Production's request for the annulment of the Administrative Court's judgment. ACS Production has lodged an appeal in cassation before the Council of State against this second judgment. The opportunity for this one to bring an interesting precision on the third opposition.

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Décision de non renouvellement d’un contrat administratif : le juge du contrat est compétent

Decision not to renew an administrative contract: the contract judge has jurisdiction

EC March 29, 2017, National Forest Office, No. 403257

The Prefect of Reunion and the National Forest Office (NFB) had concluded an agreement with Mrs B. allowing her to occupy a public domain outbuilding in a state forest in order to operate a restaurant establishment.
This convention expressly excluded any possibility of tacit renewal and included an explicit renewal clause. Mrs. B. requested the renewal of the agreement, in accordance with this clause. As the NFB refused to grant her leave, Ms. B applied to the Administrative Court to stay the decision not to renew the agreement and to order the resumption of the contractual relationship on a provisional basis.
The administrative court having granted this request, the NFB appealed to the Council of State. The opportunity for this one to make a reversal of jurisprudence.

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Le seuil de 25.000 € HT validé par le Conseil d’Etat

The threshold of 25.000 € HT validated by the Council of State

CE 17 March 2017, Paris Bar Association and Others, Nos. 403768 and 403817

Decree No. 2016-360 of 25 March 2016 on public procurement was the subject of two actions in excess of power. On this occasion, the Council of State decides on several issues.

Rule n ° 1: The simplified regime of the legal services in connection with a litigation did not disregard the principles of the public order

The first claim for annulment concerned Article 29 of the Decree, providing for a lighter regime for judicial representation services or for legal consultation with a view to the preparation of a procedure. The appellant argued that this provision is contrary to the principles of public procurement. But the Conseil d'Etat points out that these services are not excluded from the scope of the order of 23 July 2015 and that its provisions on the general principles of public procurement are therefore applicable to them. It also notes that the award of these legal services contracts is subject to an obligation to advertise and put in competition. Consequently, the Council of State rejects the request for annulment of these provisions.

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Obligation de réaliser des études de sols avant la remise des offres

Obligation to carry out soil studies before submitting bids

The territorial collectivity of Saint-Pierre and Miquelon had awarded the company Hélène et Fils a lot of a works contract at a global price and lump sum, for the construction of housing. From the beginning of the works, the company informed the project manager and the client of difficulties related to the nature of the soil. As a result, the contractor has done additional work to provide a good foundation for the foundations and has requested payment for this work. As this request was refused by the client, the company asked the Administrative Court of Saint-Pierre and Miquelon for compensation for this additional work, which was granted. The community has appealed this judgment to the Bordeaux Administrative Court of Appeal, which annuls the judgment. In that judgment, the Court held that, unless otherwise stipulated by the SCC, soil surveys must be carried out prior to the tender in order to allow candidates to form their price with full knowledge of the facts and that work related to soil surveys carried out subsequent to the offer are not additional work.

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Référé contractuel et marché à procédure adaptée : recevabilité oui, annulation non !

Contractual reference and adapted procedure contract: admissibility yes, cancellation no!

CE 23 January 2017, Sté Decremps BTP, 401400

The procedure of the contractual summary allows to sanction the contracts which were concluded without respecting the obligations of advertising and putting in competition. Article L.551-13 of the Code of Administrative Justice (referred administrative contract) and Article L 1441-3 of the Code of Civil Procedure (referred pre-contractual judicial) specify that this remedy is possible only after the conclusion of the contract.

In this case, the Conseil d'Etat considers that an unsuccessful candidate who initiated a pre-contractual injunction after the signature of a contract passed by an adapted procedure while the contracting authority has not made public its intention to conclude the contract under the conditions provided by Article 40-1 of the Code des Marches Publics and has not observed, before signing, a period of at least eleven days between the date of publication of the notice provided for by this article. and the date of conclusion of the contract is receivable to the judge of the contractual referent of a request directed against this contract, even though the contracting authority would have notified him the choice of the successful tenderer and would have respected a deadline before signing the contract .

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Avocat Marchés Publics

An application for expert review does not trigger the limitation period

CE 10 February 2017, Campenon Bernard Côte d'Azur and other companies, 391722

In view of the construction of a judicial city in Grasse, the Public Agency for Real Estate Justice (APIJ) has concluded with two different solidarity groups a contract for project management and a works contract. As a result of ground movements, disorders were noted, requiring work of comfort, which resulted in additional costs. The APIJ applied to the judge of an application for joint and several condemnation of the members of the project management group.

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Contestation du décompte général : la saisine du juge du référé du référé provision vaut réclamation portée devant le tribunal administratif compétent au sens du CCAG-Travaux

Contestation of the general count: the referral of the judge to the interim relief court is a claim brought before the competent administrative tribunal within the meaning of the CCAG-Travaux

CE 27 January 2017, STAC, 396404

Rule n ° 1:
The general statement of the market can be contested within 6 months by a provisional

STAC challenged the late nature of its complaint, which had been retained by the appeal judge to dismiss his complaint. Recall that under the CCAG works, the company has 6 months to challenge before the administrative court the express decision rejection of the owner of claims against the general market count, from the notification of this decision. Beyond this period, the company is deemed to have accepted it, any claim becoming inadmissible. This period of 6 months is suspended in case of referral to the Advisory Committee for Amicable Settlement.

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Le recours pour excès de pouvoir des tiers contre les actes détachables du contrat n’est pas mort !

The action for excess of power of third parties against the detachable acts of the contract is not dead!

EC December 23, 2016, ASSECO - CFDT and ATTAC Montpellier, n ° 392815

Two associations have asked the State Council to cancel a decree approving a partnership contract for the design, construction, maintenance, maintenance and financing of a multimodal exchange hub. They also asked that the parties be required to apply to the contract judge for the annulment of the contract, its annexes and the indemnity agreement resulting therefrom or, failing that, to terminate them amicably.

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Garantie décennale : un référé expertise judiciaire a pour effet de suspendre le délai de garantie, non de l’interrompre !

Ten-year guarantee: an expert judicial review has the effect of suspending the guarantee period, not interrupting it!

TA Rennes, 30 December 2016, Minister of National Education, Higher Education and Research, No. 1301986

The State had entrusted several entrepreneurs with the construction of the European Marine Documentation Center on the site of the University of Western Brittany. Disorders appeared on the building several years later. Following the request of the Rector of the Academy of Rennes, a judicial expert was appointed.

The Minister of National Education, Higher Education and Research then asked the Administrative Court to condemn the works contractors, as well as the supervisor to pay compensation to the State under the guarantee ten. The Administrative Court, which rejected the request as late, provides interesting details on the impact of a forensic report on the computation of the ten-year guarantee period.

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