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.
As a reminder, Article 60 of Decree No. 2016-360 of 25 March 2016 on public procurement recalls that regardless of the procurement procedure implemented, it is up to the buyer who finds that an offer seems abnormally low to seek from its author any clarifications and justifications of a nature to explain the proposed price. If the clarifications and justifications provided are not sufficient so that the price proposed is not regarded as obviously undervalued and of a nature, thus, to compromise the successful performance of the contract, it is up to the contracting authority to reject the tender, except to undermine the equality between the candidates for the award of a public contract (EC May 29, 2013, Minister of the Interior, Req No. 366606). On the basis of Article 60 of that decree, the buyer is under two obligations: firstly, to detect the abnormally low tender and to request justifications from the candidate (s) concerned; on the other hand, check the justifications and reject the offer, if any.
Public market: termination statement and title of receipts: pay attention to the pitfalls of foreclosures!
CE 25 May 2016, Municipality of Géménos req.nr 389516
In a judgment of May 25, 2016, Commune de Géménos, the Council of State recalls that an applicant is no longer admissible to challenge the sums covered by a title of recipe when the count of termination on the basis of which it has been issued became final.
Rule No. 1: an enforceable title must indicate the basis of liquidation of the claim
A local authority may not recover a debt without indicating, either in the title itself or by a precise reference to a document attached to it or previously sent to the debtor, the bases and the calculation elements on which it is based. to put the sums in question at the charge of this debtor to allow the debtor to check the accuracy and correctness (CE 21 September 1990, Technical Competition, Req No. 46103- CE 7 January 2000 M. BERGOIN, Req. No. 195524).
CE May 2, 2016, Société Toffolutti req.nr 381635
In a judgment of 2 May 2016, Société Toffolutti, the State Council recalls that public procurement and all related documents are administrative documents that must be communicated to any person who requests them, subject to the secrets protected by law. Thus, depending on the case, the BPU prices of a public contract can be considered as an essential component of the successful bidder's commercial strategy and justify its refusal of disclosure in the name of industrial and commercial secrecy.
Public contracts for legal services: Article 15 of Decree No 2016-360 of 25 March 2016 can not derogate from the law
Article 15 of Decree No. 2016-360 of 25 March 2016 on public procurement authorizes a derogation from the written form of public contracts which may be considered contrary to the provisions of Article 10 of Law No. 71-130 of December 31, 1971 governing the legal profession. The purpose of this note is to examine the legality of this regulatory value provision which can not propose an alternative formally prohibited by law.
1- As a preliminary, a brief reminder of the regulatory provisions relating to public procurement of legal services is necessary
(i) Public contracts for legal representation services of article 29 of the decree of March 25, 2016
The legal services of legal representation of a client by a lawyer as well as the legal advice services provided by a lawyer in connection with a litigation procedure are not subject to the rules of the decree with the exception of those contained in articles 2, 4 , 5, 12, 20 to 23, 30, 48 to 55, 60, 107, 108 and Title IV of Part I. It is therefore a matter of public contracts but exempted from a number of rules. These two types of legal services must nevertheless be advertised and advertised, the terms of which are freely defined by the public purchaser according to the amount and characteristics of the public contract.
CE February 10, 2016, Municipality of Bandol req.n ° 387769
In this case, the Conseil d'Etat gives details of how to assess the damage resulting from an unjustified termination and more specifically the calculation of the amount of compensation that may be paid to the contractor in case of sharing responsibility. The judgment must also be noted in that it compensates the commercial loss in case of unjustified termination.
Rule n ° 1:
The counterparty of the administration whose contract is terminated may obtain compensation for damages suffered in the event of unjustified termination. He will not only be able to claim reimbursement for his expenses that were useful to the community to which he had committed himself, but also the loss of earnings, in other words the net profit that he could have hoped to have released if he had been able to execute the contract until its end.
CE February 10, 2016, SMC2 St, req.n ° 382148
In this case, the Council of State recalls that if the mention of a particular method or manufacturing process in the specifications is prohibited, it may in some cases be justified by the subject of the contract or, exceptionally, in the case where a sufficiently precise and intelligible description of the subject of the contract is not possible without it and provided that it is accompanied by the words "or equivalent". This judgment gives the opportunity to come back for a moment on the applicable provisions and the reading grid used by the Council of State.
Cass.crim February 17, 2016, Mr.Bastien X and others. Judgment No. 549
In this case, the Criminal Chamber of the Court of Cassation considers that Article 432-14 of the Penal Code which punishes the offense of favoritism must also apply to contracts governed by the provisions of Ordinance No. 2005-649 of 6 June 2005, even though these provisions do not expressly refer to these contracts, on the basis of the principles of constitutional value of freedom of access to public procurement and equal treatment of candidates (Cass.crim. 17 February 2016, judgment no. 549, appeal No. 15-85.363)
CE 5 February 2016, Joint Public Transport Union Hérault Transport. req.n ° 383 149
In this case, the Conseil d'Etat gives details of the entry into force of the Tarn and Garonne case law as well as the new methods for assessing the deficiencies raised by candidates who have been excluded from an advertising and competitive bidding procedure. according to the date of signature of the contract under attack.
Rule n ° 1:
The Council of State recalls the rule according to which the thirds to an administrative contract likely to be aggrieved in its interests sufficiently sufficiently direct and certain by its passage or its clauses are admissible to form before the judge of the contract a recourse of a full jurisdiction contesting the validity of the contract or of some of its non-regulatory clauses that are divisible (excluding prefect and member of the deliberative body concerned). The Conseil d'Etat also recalls that, in application of the Tarn and Garonne case-law (EC 4 April 2014, Tarn et Garonnne Department, application no. 358994), the third party who acts as an unsuccessful candidate may claim that breaches the rules of advertising and competition which are directly related to his eviction.
Public procurement: the proof of the holding of the capacities of entities related to the candidate must be the widest possible
CJEU 14 January 2016, Otas Celtnieks SIA Aff.C-234/14
A candidate for a public contract is free to choose, on the one hand, the legal nature of the links which he intends to establish with the other entities for which he asserts the financial, technical and professional capacities for the execution of a contract. determined market (grouping and / or subcontracting) and, on the other hand, the method of proof of the existence of these links.
Rule 1: the public purchaser has the obligation to control the capacities of the candidates
The awarding of public contracts is always done after verification of the financial, technical and professional capacities of the non-excluded economic operators in accordance with Article 45 of the Public Procurement Code and the Decree of 28 August 2006 adopted for its application.
CE 16 December 2015, RUIZ St, req.n ° 373509
In this case, the Council of State recalls the rule according to which the sums which do not appear in the project of final count do not have in principle to be regulated by the master of work. In the context of a public works contract governed by the provisions of the GAC-Works, the final draft bill is an essential document since its primary purpose is to freeze the various sums that the holder is likely to claim from the master of the Contractual performance of the contract: forgetting an item of damage in the draft final statement prevents in principle any subsequent claim from the company including during the contestation of the market statement.