Irregularity of procedure in the absence of a decennial liability insurance certificate!
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.
Teaching n ° 1:
In order for the procedure for the award of a public works contract to be considered as regular, the successful tenderer is required to produce a decennial liability insurance certificate.
According to article 1792 of the French Civil Code, any manufacturer of a work is legally liable to the owner or the purchaser of the work for damages, even if resulting from a defect in the ground, which is likely to compromise the the strength of the work or which, affecting it in one of its component parts or one of its equipment, renders it unfit for its purpose. Article 1792-2 of the same Code recalls that the presumption of liability established by Article 1792 also extends to damage that affects the strength of the equipment of a work, but only when these are indissociably with the works of viability, foundation, frame, closed or covered. An item of equipment is considered to be inseparable from one of the viability, foundation, frame, fencing or roofing structures when it can not be removed, dismantled or replaced without being damaged or removed. of this book.
According to Article L. 241-1 of the Insurance Code, all candidates for a public contract must be able to prove that they have taken out an insurance policy covering them for this liability.
If the public contract is for works or equipment or equipment that may fall within the scope of Article 1792 of the Civil Code, then each candidate must be able to prove a decennial liability insurance certificate before being declared successful party of the contract.
Teaching n ° 2:
This document must be produced (i) within the time prescribed by the consultation rules and (ii) before informing the unsuccessful candidates
The other interest of the judgment consists in the precision provided by the Council of State on the stage of the procedure where the production of the documents required by the regulation of the consultation must intervene. Indeed, this case gives the opportunity to the State Council to clarify two points of capital importance that were never respected by the pre-contractual judge of interim relief:
First, the Council of State recalls that the prospective owner of the public contract must produce a copy of the decennial liability insurance certificate within the deadlines prescribed by the consultation rules.
Secondly, the High Jurisdiction specifies that the prospective bidder of the public contract must produce a copy of the decennial liability insurance certificate within the time prescribed by the consultation rules and " before informing the ousted candidates Before the device of article 55-IV of the decree of March 25th, 2016 relative to the public markets could possibly play.
This clarification is welcome! It is intended to apply to all the documents required by the rules of the consultation with regard to the successful tenderer including therefore with regard to tax and social certificates which must now be produced not only within the deadlines set by the regulation of the consultation but also before the information of the evicted candidates!
Board of state
N ° 414337
Reading of Friday, January 26, 2018
IN THE NAME OF THE FRENCH PEOPLE
Considering the following procedure:
The Futura Play company has asked the judge of the Rouen Administrative Court, on the basis of Article L. 551-1 of the Code of Administrative Justice, to cancel the procedure for awarding lot 4 of the public contract of the construction of aquatic equipment launched by the community of communes Caux Estuaire, as well as all decisions related thereto, and to order the community of communes to communicate the reasons for the rejection of its offer as well as the characteristics and advantages of the chosen offer.
By an order no. 1702471 of 29 August 2017, the judge of the Rouen Administrative Court dismissed the procedure for awarding the disputed lot and dismissed the remainder of the claim.
By a summary appeal, a supplementary memorial and a reply, filed on 15 September 2017, 2 October 2017 and 11 January 2018 with the litigation secretariat of the Conseil d'Etat, the community of communes Caux Estuaire and the company Variopool BV ask the Board of state :
1 °) to cancel this order;
2 °) ruling in summary, to reject the applications of the company Futura Play;
3 °) to charge the company Futura Play the sum of 4 000 euros under Article L. 761-1 code administrative justice.
- Considering that the company Futura Play, which had been a candidate in the framework of the public tender procedure launched on May 10, 2017 by the community of communes Caux Estuaire for the lot n ° 4 - thermal cover - of the market on the construction of aquatic equipment, was informed on 1 August 2017 of the rejection of his application; that, at his request, by an order of 29 August 2017, against which the community of communes and the company Variopool BV, recipient of this lot, appealed in cassation, the judge of the pre-contractual recitals of the administrative court of Rouen canceled the procedure as being concerned with that lot, on the ground that the failure of the successful tenderer to produce a decennial liability insurance certificate constituted a failure to comply with the disclosure and competitive bidding requirements laid down by the contracting authority Article 7.4 of the consultation rules;
- Considering that Article 1792 of the Civil Code provides that: "Any constructor of a work is liable as of right, towards the master or the purchaser of the work, damages, even resulting from a defect of the ground, which compromise the strength of the work or which, affecting it in one of its constituent elements or one of its elements of equipment, make it unfit for its destination. (...) "; that under Article 1792-2 of the same Code: "The presumption of liability established by Article 1792 also extends to damage which affects the strength of the equipment of a work, but only when these are indissociably bodies with viability, foundation, framing, fencing or roofing. / An item of equipment is considered to be inseparable from one of the viability, foundation, frame, fencing or roofing structures when it can not be removed, dismantled or replaced without deterioration or damage. removal of material from this work. "
- Considering that Article L. 241-1 of the Insurance Code provides that: "Any natural or legal person, whose ten-year liability may be incurred on the basis of the presumption established by Articles 1792 et seq. Of the Civil Code, must be covered by insurance. (...) Any candidate for a public contract must be able to prove that he has taken out an insurance policy covering him for this liability. (...) "; that under the second paragraph of I of Article L. 243-1-1 of the same Code, sports facilities not covered are not subject to the obligations enacted by Article L. 241-1, "unless the 'work or item of equipment is incidental to a work subject to these insurance obligations';
- Considering, in the first place, that it is clear from the documents in the file submitted to the judge hearing the application for interim relief that lot 4 relates to the thermal cover of an "outer Nordic basin" of 200 square meters and a depth of 1 , 25 meters, in connection with a public contract for the construction of a "leisure sports pool", aquatic equipment including two swimming pools and a game lagoon; that these three basins are intended to fit into a covered building, around a courtyard in which would be installed the "Nordic basin"; that by estimating, after having noted that the thermal cover in question is wrapped around an axis which is fixed to the shell of the pool, the installation of which is likely to affect the solidity of the book, that lot 4 was subject to the 10-year liability insurance obligation in application of the provisions mentioned in point 3, the judge hearing the application for interim relief did not distort the documents in the file submitted to him error of law;
- Considering, secondly, that the plea that the provisions of Article L. 241-1 of the Insurance Code, under which any candidate for a public contract must be able to justify that he has entered into a contract of decennial liability insurance, constitute an indirect obstacle to the freedom to provide services within the European Union, which is not a public policy, is new in cassation and, consequently, inoperative;
Considering, finally, that under Article 7.4 of the consultation regulation: "The successful tenderer can not be definitively designated as the holder of the contract unless he produces within seven (7) calendar days from receipt by e-mail, the following documents: (...) - The valid certificates of insurance (Article 44 III of Decree No. 2016-360 of 25 March 2016). (...) / If the candidate whose tender has been selected can not produce the certificates and certificates requested, his bid is rejected and the candidate eliminated "; that the judge of interim relief did not distort these stipulations by estimating that they imposed the production by the candidate presumed of a certificate of insurance of decennial responsibility before the information of the evicted candidates ; that the plea based on the fact that the judge of interim relief would have distorted the provisions of Article 6.2 of the special administrative clauses is ineffective since the judge has not relied on these provisions to cancel the procedure of awarding the lot in dispute ;
- Considering that it follows from the foregoing that the community of communes Caux Estuaire and the company Variopool BV are unfounded to seek the annulment of the order they attack; that their conclusions presented under Article L. 761-1 code administrative justice can, therefore, only be rejected; whereas, on the other hand, in the circumstances of this case, the sum of EUR 1 500 each to be paid to Futura Play should be borne by them on the basis of the same provisions;
Article 1: The appeal of the community of communes Caux Estuaire and the society Variopool BV is rejected.
Article 2: The community of communes Caux Estuaire and the company Variopool BV will each pay the sum of 1 500 euros to the company Futura Play under article L. 761-1 code administrative justice.
Article 3: This decision will be notified to the community of communes Caux Estuaire and the companies Variopool BV and Futura Play.