The preferential status of craftsmen in public procurement law
Public procurement law is a "neutral" right. This is why the principle of equal treatment of candidates plays a fundamental role in the implementation of public procurement procedures. It contributes to the objective of an optimal use of the public purse which passes by the choice of the most economically advantageous offer which depends on the widest possible competition between the economic operators without the shadow of a discrimination. It is also the guideline for a very firm case-law that opposes the temptation that public procurement be the instrument of a policy in favor of a given category of entrepreneurs. But the Constitutional Council admitted that the regulations could provide for a preferential right, at equal price or equivalent bids, for certain categories of candidates. Differences in treatment between candidates are therefore not prohibited, at least in domestic law. Thus, the various public procurement codes that have followed each other since 1964 have always provided for a number of derogations from the equal treatment of candidates for the benefit of craftsmen or cooperative societies of artisans in the form of a right of preference. This preferential system, although not provided for by Community law, has lasted for almost fifty years and has never been called into question during the successive reforms.
The system of the "right of preference" at equal price or equivalent of offers
Article 53-IV-1 ° of the Code des Marches Publics provides that a right of preference is awarded, at equal or equivalent price, to an offer made by a craftsman or cooperative society of craftsmen . It is true that the European Court of Justice has been seized of a preliminary question on the compatibility of this scheme with Article 19 of Directive 2004/18, which appears to limit derogations from the principle of equal treatment solely for the benefit of protected workshops. But the procedure never ended. The right of preference for the benefit of artisans has therefore never been declared contrary to Community law.
The same is true in domestic law since in its decision of 6 December 2001, the Constitutional Council simply declared contrary to the Constitution the attempt to restore the "reserve quarter" to the benefit of the cooperative and associative structures leading an integration activity. .
To date, the preferential scheme instituted for craftsmen by the Public Procurement Code is therefore fully in line with national and Community regulations. This is the reason why the judge of pre-contractual recalls does not hesitate any more to verify the respect of this derogatory device by the contracting authorities.
The "preferential quarter" regime for craftsmen
Article 53-IV-2 ° of the Code des Marches Publics provides that when the contracts relate, in whole or in part, to services that may be performed by artisans, craftsmen's companies or cooperative societies craftsmen, the contracting authorities must, prior to the call for competition, define the works, supplies or services which, in this respect, and within the limit of one quarter of the amount of these services, equivalent to tenders, will be awarded preference to all other candidates, craftsmen or cooperative societies of artisans. This "preferential quarter" regime is intended to apply to all markets regardless of their purpose. This system requires the contracting authority to define, prior to the call for competition, services that may be entrusted to craftsmen. The Council of State has already had the opportunity to sanction a procedure for awarding an electrification contract in which the contracting authority has refrained from applying these provisions by considering that: the record that the electrification work in question could not be performed for all or part by craftsmen [..]; that the union was therefore required to define the work likely to be attributed to craftsmen before proceeding with the restricted invitation to tender; it is established that prior to the call for application the union had not fulfilled this obligation; that thus the exclusion of Mr. Pierrot intervened at the end of an irregular procedure ". In his Opinion on this case, the Public Rapporteur recalls that "the formality laid down by Article 267 of the Public Procurement Code has a substantial bearing on its purpose, which is the defense of the interests of candidates for public contracts". Failure to comply with the provisions of Article 53-IV-2 ° of the Public Procurement Code may therefore constitute a failure to comply with the competition requirements which may adversely affect the candidate craftsman or because the contracting authority has not determined the the performance of the contract which it is likely to carry out, either because the contract has been awarded, on the basis of equivalent offers, to a candidate who does not possess the status of craftsman. To date, it would seem that these provisions have never been or very little applied ... ..
The "preferential quarter" regime has a direct impact on the allotment obligation.
Article 10 of the Public Procurement Code states that a contract must be divided into lots. This principle is subject to a reservation: the impossibility of identifying distinct services and exceptions allowing the contracting authority to enter into a global market on the sole condition that it demonstrates that the allotment restricts competition, risks making it technically difficult or financially costly. performance of the services or even if it is not able to carry out itself the missions of organization, piloting and coordination. As the Public Rapporteur DACOSTA reminds us "the absence of an allotment without justification constitutes a frontal misunderstanding of article 10 which must be sanctioned". Since, by definition, it can only cover part of the services, the preferential quarter imposed by Article 53-IV-2 ° of the Code implies that the contract is allotted. Already under the 2001 code, while the allotment was not yet established as a real principle, the circular application of the Code des Marches Publiques recalled in its article 54.2 that the implementation of the preferential quarter regime requires the market to be systematically allotted. The implementation of the "preferential quarter" system therefore implies the allotment of benefits since, even more than under the 2001 Code, Article 10 of the 2011 Code establishes the allotment as a true principle. Linked to the provisions of Article 53-IV-2 of the Public Procurement Code, Article 10 of the Code thus contributes to guaranteeing the positive measures taken in favor of craftsmen. The absence of an allotment therefore amounts to a failure to recognize the public order provided for in Article 53-IV-2 ° of the Public Procurement Code under conditions directly prejudicial to the artisanal candidate.
Applied in its fullness, the Code des Marches Publics could thus constitute a formidable lever to reinforce the access to the public order of the artisans regardless of the importance of the services.
What you must remember :
- The contracting authority is required to define the services that are likely to be performed by craftsmen in the limit of one quarter or one half of the amount of these services (art.53-IV.2 and 3).
- The respect of the system of preference for the benefit of the craftsmen requires to allot the benefits.
- At equal or equivalent price, preference must be given to the offer submitted by a craftsman in the limit of one-quarter or one-half of these services if the contract is awarded (art.53-IV.1) .