The ethical public market: the failure of socially responsible public purchasing
Combining ethics and the public market surprises as the terms are so distant. Initially, ethics and the public market represented exclusively the purchase devoid of any criminal reprehensible influence. This conception has evolved to penetrate the sphere of defining the needs of buyers. So, ethics in the public market has become the rule requiring buyers to seek the most economically advantageous offer. It is no longer enough to acquire the least, the law requires make the best choice.
However, from the 2004 Code of Public Procurement to the Code of Public Order, a new conception of ethics and its relationship to the public market has existed. The definition of buyers' needs must take into account sustainable development objectives. If the rule is indisputably ethical, the concrete practice by buyers of social criteria (Point n ° 1) and social clauses borders on the acknowledgment of failure (Point n ° 2).
Point n°1 : L’illusion du critère social
Like any criterion for selecting an offer, the social criterion must respect a certain number of conditions to be legal. Until 2013, the Council of State considered that the social criterion could only be validly used if it was directly related to the subject of the contract (CE, July 25, 2013, Cne de Gravelines, req. n°229666 : Rec. THIS, 2001, p. 391). This strict conception of the judge has evolved under the influence of the Court of Justice to allow, since 2013, that a criterion for the selection of offers is considered as related to the subject of the contract if it concerns its methods of execution (CE, March 25, 2013, Dep. of Isère, req. n°364950 : Rec. THIS, 2013, p. 56).
Although widely accepted by the Council of State, the practice of the social criterion by buyers shows that it is never decisive in the choice of offer. It must indeed be integrated into the technical value criterion or be specified by sub-criteria to be used. In practice, therefore, the value of the social criterion will never reach a significant threshold.
Point n°2 : Le mirage de la clause sociale
Even more worrying is the social clause. Specifically, the choice to include a clause of this nature in the contract requires the other party to perform it. In other words, if the social criterion can be considered as an appearance of ethics insofar as it will not be determining in the choice of the offer, the clause is formally social. In the event of non-performance by the other party, he will be penalized by the Administration.
En pratique, l’Observatoire économique de la commande publique a publié en mars 2018 son rapport sur les données de la commande publique pour la période 2014/2016. D’après ce rapport, 10% des marchés publics sur la période examinée contiennent une clause sociale. Il s’agit donc d’un échec. Quelles peuvent alors être les évolutions ?
It is on this question that positive law ends. We should no longer simply tend to " the most economically advantageous offer ”, But on the contrary, give full meaning to the last part of article L.3 of the Public Order Code. It might be wise, so that the social criterion is not an illusion and the social clause a mirage, to affirm that the buyers must reach " the most economically and sustainable offer ". This is what can be expected from the next directives.