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.

L’utilisation du tirage au sort validé par le Conseil d’État pour la notation du prix

The use of the draw validated by the Council of State for the rating of the prize

Conseil d'Etat, 19 October 2016, SNEF and City of Marseille, n ° s 401660 and 401710

The commune of Marseille had launched a consultation in which the price criterion was noted by applying the prices of the unit price list (BPU) provided by the candidates to an estimated quantitative detail (DQE) drawn up by the administration and not communicated allowing develop a fictional order. Several EQAs were developed, of which only one was randomly selected to serve as a basis for rating the price criteria. This procedure, which was censored by the judge in chambers, was validated by the Conseil d'Etat.

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Mise en cause de la responsabilité du mandataire du maître de l'ouvrage par le titulaire du marché

Questioning of the responsibility of the representative of the owner by the holder of the contract

State Council, 26 September 2016, n ° 390515, Dumez Ile-de-France company

The holder of a contract may not act directly against the principal's agent, except in the case of a quasi-delictual fault
In a judgment relating to a contract awarded by an agent in the name and on behalf of the contracting authority, the Council of State considers that the holder of the contract may act against the developer, on the basis of the liability. contractual, or against the agent on the one of quasi-tortious liability.

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Le caractère onéreux des marchés publics

The onerous nature of public procurement

According to its classic definition, a public contract is a contract, that is, an agreement by which one or more persons bind themselves to one or more others to give, to do or not to do something, which must meet the needs of the administration for supplies, services and works.

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La volonté de mettre fin à un litige ne permet pas de déroger au principe de l'nterdiction des modifications substantielles

The desire to put an end to a dispute does not make it possible to derogate from the principle of the prohibition of substantial changes

CJEU, 7 September 2016, Finn Frogne, aff. C-549/14

The desire to put an end to a dispute does not make it possible to derogate from the principle of the prohibition of substantial modifications

Ruling on the case of a public contract by the Danish State that gave rise to a transaction following implementation difficulties, the CJEU recalls the prohibition to substantially modify a market after its award and holds that the will to put termination of a dispute does not allow derogation from this principle.

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La non application d’une clause de tacite reconduction d’un contrat de la commande publique ne peut donner lieu à indemnisation

The non application of a clause of tacit renewal of a contract of the public order can give rise to compensation

Council of State, October 17, 2016, Municipality of Villeneuve-le-Roi, n ° 398131

Deciding on a concession allowing to exploit an activity on the market of a commune, the Council of State recalls the principle of illegality of clauses of tacit renewal in the contracts of the public order and sanctions a clause indemnifying the cocontractant when l administration does not apply the tacit renewal clause. It also applies the principle of prohibition to contract on the exercise of the power of unilateral decision to a clause providing for the modalities of review of various rights of a fiscal nature.

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Cocontractants de l’administration : n’attendez pas pour contester une décision de résiliation !

Co-contractors of the administration: do not wait to dispute a termination decision!

Administrative Court of Appeal of Marseille, October 17, 2016, FFSNW, n ° 15MA01505

The municipality of Roquebrune-sur-Argens had concluded with the French Federation of Water Ski and Wakeboard (FFSNW) an agreement occupying the public domain, which it terminated by a letter with no indication of the routes and deadlines of recourse. The FFSNW challenged this decision before the contract judge. The opportunity for the Administrative Court of Appeal of Marseilles to recall the principles of the jurisprudence "Municipality of Béziers II".

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Lorsque le décompte est devenu définitif, le sous-traitant ne peut plus agir contre le maître d'ouvrage

When the count has become final, the subcontractor can no longer act against the client

CAA Nancy, June 30, 2016, n ° 15NC01096, LLC AC2D

When the count has become final, the subcontractor can no longer act against the client
Ruling on the compensation claim of a subcontractor against the client, the Administrative Court of Appeal of Nancy recalls the conditions of the direct payment and retains that the intangible and definitive counting is opposable to the subcontractor, whose the action with regard to the contracting authority becomes inadmissible.

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Le maître d’ouvrage peut transférer à un tiers son action sur le fondement de la garantie contractuelle

The client can transfer to a third party his action on the basis of the contractual guarantee

State Council, October 7, 2016, Société Lyonnaise des Eaux France, No. 392351

The urban community of Bordeaux (CUB) had entrusted Lyonnaise des Eaux with a project management mission for the renovation of a collector of the sewerage network, this company also operating the sewerage network within the framework of a leasing contract. The CUB has also entrusted the execution of the works to a group of companies. Following the appearance of disorders, the Lyonnaise des Eaux has requested the conviction of the companies that carried out the work to compensate for the damage related to these disorders under the ten-year responsibility of the manufacturers, on the one hand, and the guarantee contractual, on the other hand.

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Marché de commissaires aux comptes : le pouvoir adjudicateur peut-il le résilier sans saisir le Tribunal de commerce ?

Auditors' market: can the contracting authority terminate the contract without going to the Commercial Court?

Nantes Administrative Court of Appeal, October 5, 2016, No. 14NT02049

Deciding on the case of an auditors contract terminated by the contracting authority, the Nantes Administrative Court of Appeal clarifies the relationship between Article L.823-7 of the Commercial Code and the rules in force. termination of public contracts. It also recalls the rules applicable to compensation in case of termination.

Rule n ° 1: A contracting authority does not have to seize the commercial court to terminate a contract of auditors when there is no fault or impediment

In this case, a DPO had entrusted a company with the exercise of the statutory mandate of statutory auditor, in the context of a public contract whose specific specifications provided that the natural persons entrusted with performing the services were designated. in the act of engagement. If this person was no longer able to fulfill this mission, the contractor should inform the contracting authority and propose a replacement, which he could challenge. Since the person appointed to perform the mission left the company, the latter did not inform the contracting authority and did not propose a replacement. The DPO therefore terminated the contract pursuant to Article 39.5 CCAG PI 1978. Having lodged an appeal with the Administrative Tribunal, the company argued that the termination decision was irregular since the Director General of the Office did not was not competent to terminate the contract and that only the commercial court was competent to assess the increase of the functions of an auditor, pursuant to Article L.823-7 of the Commercial Code, which provides that " in case of fault or impediment, the auditors may [...] be relieved of their duties before the normal expiry of those functions by a court decision [...] " The Administrative Court accepted this argument by ruling that the DPO should have seized the commercial court of its request for termination, that the termination was thus abusive and that the DPO was responsible for the harmful consequences of this termination. The Administrative Court sanctions this judgment. It holds that the aforementioned provision of the Commercial Code was not applicable in this case, since the termination was pronounced not because of the fault or the impediment of the auditor designated in the act of the commitment, but because of his departure from the market company and the lack of information and the proposal of a replacement, as required by the contract specifications. The DPO was therefore justified in terminating the market.

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Le cocontractant de l'administration peut-il résilier son marché ?

Can the contracting party of the administration terminate its contract?

CE, July 19, 2016, Sté Schaerer Mayfiel France No. 399178

In this case, the Council of State recalls the rare conditions under which the contracting party of the administration may be authorized to terminate his contract

Rule # 1: Principle: the holder of an administrative contract can not terminate it unilaterally

The Council of State recalls the principle according to which the holder of an administrative contract is obliged to ensure its execution and can not in particular avail himself of the deficiencies or failings of the administration to avoid his own contractual obligations or take the initiative to unilaterally terminate the contract. In this case, a company had unilaterally terminated its contract on the basis of the defection of a subcontractor caused by the late payment of the public corporation.

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