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.
CE 25 January 2016, French Polynesia, req.no 384414
In this case, the Council of State recalls that a prime contractor can not be ordered to repair itself the defects found under the ten-year guarantee.
It follows that in the context of a dispute, if the judge is seized of conclusions tending to enjoin the prime contractor to repair the malfunctions found and that its responsibility is retained, in whole or in part, it belongs to him, even in the absence of express findings aimed at that end, to order the supervisor to pay compensation in the amount of the cost of the work.
In this case, the Council of State confirms the rule that the owner can not be held liable for difficulties in the execution of the work which are not directly attributable to him.
Rule n ° 1: the owner can not be held responsible if he is not directly at the origin of the difficulties of execution of the building site
The rule is now well established: the difficulties encountered in the performance of a fixed-price contract can only give rise to compensation for the benefit of the firm which owns the contract to the extent that it justifies, or that these difficulties find their origin in unforeseen constraints having had the effect of upsetting the economy of the contract, or that they are attributable to a fault of the principal.
In this case, the Council of State reasons in two stages: firstly, it notes that the difficulties encountered in the execution of the market have their origin in the faults of the prime contractor and the company in charge of the construction of the platform on which a new emergency airlock was to be erected, so that the owner could not be held responsible for the damage caused by the applicant companies as a result of the lengthening of the period of execution of the works contract, provided that these losses result from the failure of another contractor or the prime contractor.
This is the classic application of the solution already released by the Council of State in its judgment of 5 June 2013, Region of Upper Normandy, n ° 352917 (Considering in principle: "The difficulties encountered in the performance of a fixed-price contract may be compensable for the benefit of the firm which is the owner of the contract only to the extent that it justifies either that those difficulties have had the effect of upsetting the economy of the contract, or that they are attributable to fault by the public body, but not solely because of misconduct by other parties ").
In practice, it is now necessary to demonstrate the existence of a particular fault at the expense of the owner, for example because of delay in making decisions during construction or modifications to the work under construction (CAA Bordeaux 1st June 2010, Sté CARI, req.no 09BX02069).
In the absence of fault on the part of the contracting authority, the company suffering delays in the execution of a construction site must seek the quasi-delictual liability of the other wrongdoers not before the Administrative Court but before the General Court. Commerce (EC 2 August 2011, Central Region, No. 330982).
In doing so, the Council of State transfers the risk of a default of the company or the member of the prime contractor who is causing the delays to the claimant company and no longer to the contracting authority. .
CE 7 December 2015, Commune of Bihorel req.nr 380419
In a judgment of 7 December 2015, Commune de Bihorel req.no. 380419, the Council of State lays down a new rule according to which the principal can henceforth seek the responsibility of the builders of an operation with whom he does not has no contractual relationship such as a subcontractor.
Rule # 1: the owner can naturally seek the responsibility of the participants in a construction operation with whom he has concluded a contract
It is the responsibility of the client who intends to obtain compensation for the damaging consequences of a defect attributable to the design or execution of a work to direct his action against the manufacturer (s) with whom he has concluded a rental contract in other words all participants with whom it is bound by contract (prime contractor, companies responsible for carrying out the work, technical controllers, etc. ...).
Decree No. 2015-1904 of December 30, 2015 modifies the thresholds of the formalized procedures for the award of public contracts and other public contracts.
Implementing Regulation (EU) 2015/1986 of 11 November 2015 also requires the use of new advertising forms since 1 December 2015 for formalized procedures.
Alert n ° 1: New thresholds for formalized procedures from 1 January 2016
Decree No. 2015-1904 of 30 December 2015 modifies the thresholds of the formalized procedures for the award of public contracts and other contracts covered by the public order. The thresholds of the formalized procedure which were previously € 134,000 excluding tax, 207 € 000 excl. Tax, € 414,000 before tax and € 5,186,000 before tax are respectively replaced by the following thresholds: € 135,000 before tax, € 209,000 before tax, € 418,000 before tax and € 5,225,000 excluding tax. The thresholds of € 207,000 excluding tax and € 5,225,000 excluding taxes are also retained for partnership contracts with local authorities (publicity obligation and the possibility of negotiation) or public works concessions awarded by the same authorities.
These new thresholds are applicable from January 1, 2016 to December 31, 2017.
Limitation of the grounds for exclusion to what is necessary to prevent the risk of agreements between candidates
Rule 1: The grounds for exclusion from procurement procedures should be limited to what is necessary to prevent collusive behavior between candidates
In this case, the Court of Justice of the European Union considers that an automatic exclusion from tendering procedures on the grounds of lack of production in support of the offer of a declaration of acceptance of a legality convention infringes the principle of proportionality.
For the Court, the requirement for a candidate for a public contract to declare, on the one hand, the absence of a control or association report with other candidates and, on the other hand, the absence of agreement with other candidates in the tendering procedure, with the consequence that, in the absence of such a statement in support of his application or offer, he is automatically excluded from this procedure, infringes the principle of proportionality.
Impossibility of selecting a candidate who has not justified his technical and financial capacities and prohibition for an architect to intervene both as prime contractor of the public purchaser and adviser of a candidate.
Rule n ° 1: The public purchaser is required to control the technical and financial capacities of the candidates
The Council of State recalls the rule according to which the contracting authority "must control the professional, technical and financial guarantees of the candidates for the award of a public contract" (EC 26 March 2008, Communauté urbaine de Lyon, req.n ° 303779). In the event of litigation, it is up to the public purchaser to demonstrate that he has really been able to control the technical and financial capacities of the candidates and to produce the proof of this control.
The fact of noting an offer which should never have been examined by the Tender Committee since its application had previously to be rejected is such as to distort competition and equal treatment between the candidates (CAA Versailles 5 February 2009, Sté SEE SIMEONI, req.n ° 07VE02058). This is the reason why the Council of State has already had the opportunity to recall that an ousted candidate is automatically aggrieved by the "irregular" admission of a candidacy regardless of its ranking (CE 11 April 2012, Syndicat ODY 1218 NEWLINE LLOYD'S London, Req. No. 354652).
CE 21 October 2015, Greater Dijon Urban Community. req.n ° 391 311
In this case, the Conseil d'Etat considers that an alternative solution imposed for the performance of all or part of the services covered by the contract can not be equated with either an option or a variant. The alternative solution referred to in that judgment differs from these two concepts and is of particular interest to the contracting authorities in the context of the awarding of their contracts.
Rule n ° 1: the principle
A public person may participate in an advertising and tendering procedure initiated by another public person. The Conseil d'Etat considers that no principle or text prevents a public person from applying for the award of a public contract to meet the needs of another public person.
Rule n ° 2: the modalities
The regularity of this participation is subject to two conditions: on the one hand, this participation must respond to a public interest, that is to say constitute the extension of a public service mission for which it is responsible, for the purpose in particular to depreciate the equipment, to value the means available to the service or to ensure its financial equilibrium; on the other hand, it must not compromise the exercise of its public service mission.
EC October 14, 2015, Réunion Region, Ref. No. 391183
A subcontractor of an unsuccessful candidate may challenge the validity of a contract in the same manner as an unsuccessful candidate if he has sufficient cause for interest.
In this case, the Council of State provides a first indication on this point considering that when the subcontractor proposed by the tenderer was decisive in the elaboration of the application or the offer, it must be considered as justifying an interest sufficiently damaged to enable him to contest the validity of the contract concluded with another company.
CE 14 October 2015, Nord Pas de Calais region, req.no. 390968
In this case, the Council of State recalls that a public contract concluded in breach of a potential conflict of interest is void if it is a breach of the general principle of impartiality.
Rule No 1: Reminder of the concept of conflict of interest within the meaning of Community law and national law
At Community level, Article 24 of Directive 2014/24 / EU on the award of public contracts provides a very broad definition of the concept of conflict of interest by at least addressing any situation in which staff members of the contracting authority or a provider of procurement services acting on behalf of the contracting authority who participate in the course of the procedure or are likely to influence the outcome have, directly or indirectly, a financial, economic or other personal interest which might be perceived as compromising their impartiality or independence in the context of the procurement procedure.
Thus, according to Article 24 of Directive 2014/24 / EU, the persons likely to be concerned thus target all the staff members of the contracting authority who take part in the procedure or are likely to influence the outcome of the procedure. ;
At the national level, Article 2 of Law No. 2013-907 of 11 October 2013 on the transparency of public life for the first time provides an objective definition of the conflict of interest by targeting any situation of interference between a public interest and public or private interest that is likely to influence or appear to influence the independent, impartial and objective exercise of a function ".
In the end, within the meaning of the law, the conflict of interests can be defined as a situation of interference between a public service mission and the private interest of a person who contributes to the exercise of this mission, when interest, by its nature, can reasonably be regarded as likely to influence or appear to influence the independent, impartial and objective exercise of its functions.
Failure to comply with these provisions constitutes an offense of unlawful taking of interest punishable under Article R 432-12 of the Penal Code.