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.
The creation of a union by communities transferring their jurisdiction does not constitute a public contract
CJEU, 21 December 2016, Remondis GmbH & Co. KG North Region c. Region Hannover, aff. C-51-15
The Hanover region and the municipality of Hanover have created a trade union, to which the region has transferred its responsibility for the removal of waste. In addition, the two communities provided him, free of charge, with their respective means in carrying out the tasks of garbage collection, street cleaning and winter services. Remondis, a company active in the waste sector, has submitted a request for a public procurement audit to the German courts, arguing that the creation of the union and the transfer of missions to it by the region and the municipality constitute a public contract. It is in this context that the CJEU has been seized of questions for a preliminary ruling, allowing it to clarify the concept of public procurement in the context of relations between public entities.
SAPE SAS was awarded lots of two works contracts. For the execution of these contracts, it used Portuguese subcontracting companies. Following a control on the sites of the services of DIRECTE, the prefect has issued an order ordering the shutdown of SAPE SAS company on the two sites concerned for a period of one month, because of the existence of hidden work. The company appealed to the judge hearing the application for interim relief to request the annulment of the prefect's order. Considering the existence of a link of subordination between the personnel made available and the holder of the contract, in spite of the approval of the subcontractors, the judge rejects the appeal.
The exercise of an administrative appeal against a decision to terminate a contract does not have the effect of interrupting the period of litigation
CE 15 December 2016, Municipality of Saint-Denis d'Oléron, Req.N ° 389141
An individual had entered into a contract with a municipality authorizing him to park his boat in her port. The contract was terminated by a decision based on a provision of the port regulations. The individual filed an appeal, which was dismissed, and then applied to the Administrative Tribunal for an annulment of the termination decision. This request was rejected. On appeal, the judgment was quashed by the Administrative Court of Appeal. On an appeal, the Conseil d'Etat recalls that the exercise of an administrative appeal against a decision to terminate a contract does not have the effect of interrupting the period of litigation.
A candidate who has committed a serious professional misconduct does not automatically have to be excluded from the procedure
The Ministry of Health of the Netherlands has launched a procedure for awarding a contract for transport services. The consultation documents provided for reasons for exclusion and required candidates to complete a declaration stating in particular that neither the company nor one of its officers made a serious mistake in the practice of his profession. The Department informed a candidate that his offer was ranked second behind a business association to which he intended to award the contract. A few weeks after this decision, the Dutch competition authority fined two of the companies in the association for violating the national competition law. The Ministry nevertheless decided to maintain its decision to award the contract to the said association of companies. The second ranked candidate then initiated a procedure to request a ban on this award decision. The Supreme Court of the Netherlands decided to refer several questions to the CJEU for a preliminary ruling. The opportunity for it to provide clarification on exclusions, under the former Markets Directive.
Clarification of the "In House": an activity imposed by a non-shareholder public authority is not an in house activity
An Italian municipality awarded a service contract, without prior call for competition, to Cogesa, a wholly public-owned company owned by several municipalities, including the one concerned by the dispute. While this service contract had not yet been concluded, the municipalities holding the capital of Cogesa entered into an agreement with a view to jointly exercising a control similar to that exercised over their own services. A third company interested in the service contract lodged an appeal before the Italian courts against the decision awarding the service contract and against the inter-municipal agreement. The Italian Council of State has referred two preliminary questions to the CJEU, which gives it the opportunity to clarify one of the conditions of the "in house" regime, under the former Markets Directive (Directive 2004/18, replaced by Directive 2014/24 / EU).
CAA Bordeaux, December 1, 2016, Company building company DUS, No. 14BX01718
In the context of a procedure adapted for the award of a works contract, a company which had been placed in receivership and authorized to continue its activity, before a recovery plan is stopped by a judgment , has seen its offer dismissed. She then applied to the Administrative Court of Bordeaux for compensation, which was rejected. On appeal, the Bordeaux Administrative Court of Appeal held that the company should have indicated that it was in receivership and produce the judgments relating to this procedure. Consequently, it considers that its offer was irregular and that the applicant therefore had no chance of winning the contract. The Court therefore rejects the claim for compensation. This judgment is reminiscent of certain evidences, but it seems to us to be open to criticism on other points.
The termination of the contract at the expense and risk of the holder must be based on serious misconduct and mentioned in the bid remains
CE 23 November 2016, Hospices Civils de Beaune, n ° 392227
In this case, the Hospices Civiles de Beaune awarded Axima a public works contract, which was terminated at the expense and risk of the company, due to various contractual breaches. She appealed to the Administrative Court asking for the financial settlement of the contract and compensation for various losses she considered to have suffered. The trial judge dismissed his application, as did the Administrative Court of Appeal. The Council of State pronounced a first time, canceling the judgment of the judge of appeal. The latter issued a new judgment fixing the balance of the contract, against which the Hospices de Beaune lodged a main appeal and the company Axima a cross appeal. In this second judgment on this case, the Council of State recalls the conditions of regularity of a termination to the expenses and risks of the holder.
Rating of the price criterion: No consideration of the particular situation of candidates with regard to VAT
CAA Bordeaux, November 15, 2016, Bordeaux Métropole, n ° 15BX00253
The Communauté urbaine de Bordeaux, which succeeded Bordeaux Métropole, had launched two subsequent training contracts, following a multi-awarding framework agreement. One of the foreclosed companies in one of the subsequent contracts filed an application with the Administrative Tribunal seeking cancellation of the contract and compensation for its injury, which was upheld by the trial judge. The Administrative Court of Appeal annuls this judgment, stating that the method of rating the price criterion can not be assessed according to the particular tax situation of the candidates with regard to VAT.
Conseil d'Etat, October 21, 2016, Philippe Vediaud Advertising Company, n ° 392355
The municipality of Bègles had concluded a contract for the provision of display modules for municipal information and advertising. An unsuccessful candidate appealed to the Administrative Court, which canceled the contract. The Administrative Court of Appeal quashed the judgment. The Council of State censures in turn the judgment of the Court, on the question of the regularity of the candidatures.
Rule n ° 1: Some erroneous references are not likely to distort the assessment of the professional qualification
The applicant company had raised two pleas concerning applications. By the first, she argued that the successful company would have obtained the market only by producing false references. In this respect, the Administrative Court of Appeal notes, on the one hand, that the choice of the tender commission was not made according to the references of the candidates but by taking into account their offers and, on the other hand, that the erroneous references produced by the successful candidate, of which there were six, were only some of the many, undisputed references relied on by the winning company. The Council of State validates this reasoning, considering that some inaccurate references are not likely to distort the assessment of the professional qualification of the candidate, since it presents a quantity of uncontested references much more important.
Public Procurement: Possibility of Refusing to Disclose Documents That Could Affect the Fairness of a Trial
An opinion drafted in the perspective of a dispute in order to assess the legal risks and weaknesses of the procedure for awarding an attacked contract may not be disclosed by operation of law
Ruling on the request of several companies that had asked the Ministry of the Interior to provide them with documents on a public contract, the Council of State provides useful clarifications and reminders in the disclosure of documents related to public procurement in the framework of a jurisdictional proceeding initiated.