Vignette dossier référé pré-contractuel et contractuel

Pre-contractual & Contractual referral

The pre-contractual procedure referred to in Article L 551-1 of the Administrative Justice Code makes it possible to sanction breaches of the publicity and competition requirements that may affect the award of public contracts, public service delegations, partnership agreements and all the contracts subject to the order n ° 2015-899 of 23 July 2015 relative to the public markets and to the ordinance n ° 2016-65 of 29 January 2016 relative to the concession contracts.

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Un marché public d’assurance incluant une clause de protection juridique : assurance responsabilité civile ou assurance protection juridique ?

A public insurance contract including a legal protection clause: liability insurance or legal protection insurance?

CE 25 January 2019, BEAH, No. 423159

The Conseil d'Etat considers that, pursuant to Article L127-6 of the French Insurance Code, the clause inserted in a public contract of civil liability insurance whereby the insurer undertakes to take charge of the defense or representation of his insured person in any judicial or administrative proceedings, where such care is exercised at the same time in his own interest, does not constitute a legal protection insurance clause.

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Rejet irrégulier de l’offre de l’entreprise dont le plan de redressement judiciaire judicaire prévoit une durée d’apurement du passif inférieure à la durée du marché

Irregular rejection of the company's offer for which the judicial reorganization plan provides for a duration of settlement of the liability less than the duration of the contract

THIS January 25, 2019, Dauphin Telecom Company, No. 421844

The Council of State lays down the rule according to which the offer of the company whose plan of judiciary judicial reorganization foresees a duration of clearance of the liabilities lower than the duration of the market can not be excluded from the procedure of auction .

The Council of State also specifies that in the context of a competitive procedure with negotiation, in the event that the buyer has not limited the number of candidates admitted to participate in the procedure, the verification of the prohibitions to tender can intervene at any time and at the latest before awarding the contract to the only candidate to whom the buyer intends to award the contract.

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Sanction à géométrie variable de la rupture d’égalité entre les candidats !

Sanction with variable geometry of the rupture of equality between the candidates!

CE 12 September 2018, Mixed Household Waste Syndicate of the Chevreuse Valley, n ° 420454

The sanction of the break of equality between the candidates is not sanctioned in the same way as it results from the behavior of the public purchaser or a candidate

The public purchaser who implements a competitive tendering procedure in order to award a contract must ensure respect for the principle of equality between candidates. The judge of the pre-contractual injunction must annul the procedure if he raises a cause affecting the impartiality of the purchaser or if he notes a break of equality between the candidates because of the information privileged which benefited one of them. In the first case, doubt is enough to bring about the annulment, while in the second, the break in equality must be established.

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Irrégularité d’un critère de la localisation géographique ayant des effets discriminatoires !

Irregularity of a criterion of geographical location having discriminatory effects!

CE 12 September 2018, Department of Haute-Garonne, n ° 420585

This case provides an opportunity to recall the conditions under which a public purchaser may regularly use the criterion of geographical location as a criterion for judging offers.

The department of Haute-Garonne has launched a consultation for the signing of a framework agreement of 18 lots for the acquisition of documents on all media and associated services, for the benefit of the departmental media library. The consultation rules provided for three criteria for the judging of tenders, weighted on a total of 100 points, ie 70 points attributed to the quality of the service, 20 points attributed to the discount rate on public prices and 10 points attributed to the costs generated by execution of the framework agreement and supported by the departmental media library for the travel of its representatives to the holders.

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Contrat de mobilier urbain : confirmation de la qualification de concession de service !

Urban furniture contract: confirmation of the qualification of service concession!

TA Amiens, September 13, 2018, Sté DECAUX France, n ° 1603075

In this case won by the Cabinet Palmier-Brault Associés on behalf of the company Philippe Védiaud Publicité, the Administrative Court of Amiens confirms the solution made by the Council of State in its judgment of May 25, 2018, Sté Philippe Védiaud Publicité, 416825, according to which the remuneration of the owner of a street furniture contract via the sole collection of advertising revenues is sufficient to qualify a service concession contract.

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L’absence d’indication du personnel affecté à une prestation rend l’offre irrégulière !

The lack of indication of the personnel assigned to a service makes the offer irregular!

TA Versailles Ordo August 29, 2018, TFN Company Cleanliness Ile de France, req.no.

This case, advocated by the firm Palmier-Brault-Associés, provides an opportunity to recall the obligation for candidates to specify in their technical offer the qualifications and profiles of the actors responsible for performing the services of the contract to prevent their offer be declared irregular.

The Public Establishment of the Château, the Museum and the National Estate of Versailles has launched an open tendering procedure on the basis of the provisions of Article 25 of Decree No. 2016-360 of March 25, 2016 relating to international markets. public authorities to provide cleaning services for the premises and the public sanitary facilities

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Appel d'offres ouvert: la régularisation d'une offre irrégulière est une simple faculté !

Open invitation to tender: the regularization of an irregular offer is a simple faculty!

CE 26 April 2018, Department of Bouches-du-Rhônes, n ° 417072


Rule n ° 1: the regularization of an irregular offer is a faculty and not an obligation

According to Article 59 of the Public Procurement Decree of 25 March 2016, an irregular offer is an offer that does not comply with the requirements set out in the consultation documents, in particular because it is incomplete. Contrary to the old regulation which prohibited any possibility of regularizing an irregular offer, the new regulation resulting from the decree of March 25th, 2016 set up a system of regularization of the irregular tenders in the procedures of call for tender and the adapted procedures. without negotiation.

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Le cabinet obtient le rejet du référé précontractuel contre la procédure d’attribution du marché d’audioguide du Château de Versailles !

The firm obtains the rejection of the pre-contractual summary against the procedure of attribution of the audioguide market of the Château de Versailles!

TA Ordo 1st March 2018, SYCOMORE Company, Req. No. 1800896

The Public Establishment of the Château, the Museum and the National Estate of Versailles has launched an open tendering procedure on the basis of the provisions of Article 25 of Decree No. 2016-360 of March 25, 2016 relating to international markets. to cover its needs for the distribution of audioguides and the creation / production of audioguided courses for its visitors.

By a registered motion of February 7, 2018, the company Sycomore decided to refer to the judge of pre-contractual recalls on the basis of Article L. 55 1-1 of the Code of Administrative Justice to request the cancellation of the procedure of award by the Public Establishment of the Château, the Museum and the National Estate of Versailles of lot n ° 1 of the audioguides market and creation and production of audio / video LSF and the decision of 29 January 2018 by which the Public Establishment rejected his offer.

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Irrégularité de procédure en l’absence de production d’une attestation d’assurance de responsabilité décennale !

Irregularity of procedure in the absence of a decennial liability insurance certificate!

EC 22 January 2018, Community of Municipalities Caux Estuary, No. 414337

In this case, the Conseil d'Etat considers that in the context of a public works contract, the lack of production by the successful tenderer of a public works contract of a decennial liability insurance certificate in the The time limits laid down by the rules of the consultation constitute a breach of the publicity and competition requirements which justify the cancellation of the award procedure.

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Un offre financière égale au prix d’achat des fournitures n’est pas suffisant pour caractériser une offre anormalement basse !

A financial offer equal to the purchase price of the supplies is not sufficient to characterize an abnormally low offer!

CE 22 January 2018, Commune of Vitry-Le-François, Ref. No. 414860

In this case, the Conseil d'Etat considers that the price offered by a candidate to the public purchaser which corresponds exactly to the purchase price of the equipment is not sufficient to characterize an abnormally low bid.

Teaching n ° 1:

Under Article 60-I of Decree No. 2016-360 of 25 March 2016 on public procurement, the public purchaser must require the tenderer to justify the price or the costs proposed in his tender when it appears to be abnormally low. in respect of the works, supplies or services, including the portion of the public contract which he intends to subcontract.

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