Un candidat à un marché public peut-il opposer ses conditions générales de vente au pouvoir adjudicateur ?

Can a candidate for a public contract object to the General Terms and Conditions of Sale to the contracting authority?

by gmorales on 8 May 2013 | Category: Folders of the month
Un candidat à un marché public peut-il opposer ses conditions générales de vente au pouvoir adjudicateur ? Un candidat à un marché public peut-il opposer ses conditions générales de vente au pouvoir adjudicateur ?

Un candidat à un marché public peut-il opposer ses conditions générales de vente au pouvoir adjudicateur ? The general conditions of sale are defined in Article L. 441-6 of the French Commercial Code. These are pre-established documents containing stipulations drafted unilaterally by one of the candidates and whose purpose is to regulate the legal regime of the future contract. The general conditions of sale are distinguished from the public contract which will be concluded at the end of the procedure of competition on two main points. First of all, they were not drafted for the purpose of concluding the contract, since they pre-exist and are independent of the latter. Secondly, their drafting is essentially unilateral, which raises, on the one hand, the problem of their knowledge and then their acceptance by the contracting authority, on the other hand, that of the conflict in their application which may result from their incompatibility with the specifications of the specifications. The general conditions of sale contain all the provisions applicable to a category of contracts (terms of settlement of accounts, calculation of deadlines, receipt of services, termination of the contract, procedures for settling disputes, etc.) which are often poorly known to the contracting authority because they are not physically annexed to the contract documents. Also, in the context of litigation before the administrative judge (contesting penalties, contestation of the settlement of a contract, termination ...), it is not uncommon to see a contracting authority dismissed of its request simply because he did not respect certain terms of performance of services, or settlement of disputes, provided for by these documents which he did not know that they applied to him! This situation is very frequently encountered for low-cost adapted procedure contracts where the purchase is often made on simple quotes or via the issuance of a purchase order or an unofficial contract drawn up directly by the holder at the end of the year. request from the contracting authority. In these cases, it is not uncommon to see the general conditions of sale as part of the conditions of performance of the contract. It can not therefore be stressed enough that the public purchaser must carefully read all the documents in the contract, including the documents to which he refers, since the general conditions of sale may contain many pitfalls in the event of litigation. the contracting authority!

The opposability of the general conditions of sale

The rule of thumb is that the general conditions of sale apply only to public contracts which expressly refer to them. They then acquire contractual value. This situation is very frequently encountered for certain types of service in the framework of adapted procedure contracts (boiler maintenance contract, supply and maintenance of fire extinguishers, rental and maintenance contract for photocopiers, ink cartridge deliveries, contract for vehicle maintenance, moving contract etc ...). Indeed, only general conditions of sale having contractual value, known and accepted by the other party, at the time of the exchange of the consents, may in principle be validly opposed and serve as law applicable to the execution, or to the termination of the contract. On the form, the conditions of sale must be legible and clearly appear as part of the offer known and accepted by the contracting authority before the conclusion of the contract (TA Chalon en Champagne, February 5, 2008, Sté LTJH Déménagements, No. 0,501,652). In practice, this acceptance can firstly result from the signing of a purchase order on which the general conditions of sale appear. Thus about the issuing of a purchase order issued by a municipality to buy vehicles for an amount of 50.000 € HT, the Administrative Court of Saint Denis de la Reunion will decide to apply the general conditions of sale that appeared on the purchase orders (TA Saint Denis of Reunion, December 1st, 1999, Mr. CAILLE François, n ° 9800368). This acceptance can then result from the signing of a contract on the back of which appear the general conditions of sale. In a judgment dated September 18, 2008, the Administrative Court of Montpellier has already had the opportunity to confirm this solution about a dispute concerning the termination of a maintenance contract for a photocopier. In that case, the firm which had contracted the contract had asked the Court to order a municipality to pay him the termination indemnity provided for in the general conditions of the maintenance contract. The judge will prove him right up to sanctioning the community for not having complied with the terms of termination provided in the terms and conditions of sale appended to the maintenance contract: "Whereas the municipality of Sète argues that the general conditions of sale have not been initialed by the mayor of Sète and that, consequently, it had not validly entered into these; that, however, the absence of initials of the general conditions of sale, placed on the back of the maintenance contract, has no impact on its contractual commitment resulting from the signature of the front, without it being necessary either that it make an express reference; that it follows from the instruction that a letter from a deputy mayor dated April 5, 2000, rejecting the claim of the applicant by qualifying the said clause 'leonine', should be regarded as establishing that the municipality has well knowledge of such a clause inserted in the initial contract; that it is not disputed by the municipality of Sète that this one terminated the contract in question on December 17, 1999, without respecting the forms envisaged by the aforementioned article, and engages its contractual responsibility "(TA Montpellier 18 September 2008, SOCIETE FAXCOPY DIFFUSION, No. 0604340). Be careful, however, because a purchase order can provide that the signatory acknowledges having read the general conditions of sale of the company and accepts them without these conditions being annexed to the contract (CAA Paris June 5, 2001, UGAP, req .n ° 00PA02972).

Settlement of conflicts of contractual standards

In case of contradiction between the general conditions of sale and the other parts of the contract, the judge will consider the order of priority of the contractual documents before making his decision if, of course, a contractual provision makes it possible to determine the order of priority of the documents. Otherwise, the judge will be forced to seek the common intention of the parties. In a judgment dated June 6, 2008, the Administrative Court of Nice recognized the right of the incumbent company to require the increase of its annual premium on the grounds that the general conditions of sale were an integral part of the contractual documents. of the contract: "Considering that the particular clauses applicable to the contested contract enumerate in descending order of priority the contractual documents, namely the act of engagement, the said clause of special clauses, and the general conditions of sale provided by the holder; that the stipulations of the particular clause of clauses prevail over those of the general conditions; Considering that if the particular clauses applicable to the contract do not open to the company AXA France the faculty to carry out a unilateral increase of the premium, it does not exclude it; that Article 8.3 of the general terms and conditions of the AXA insurance contract stipulates that "if, for technical reasons, the insurer is led to modify the rates applicable to the risks covered by this contract, the contribution payable on each due date principal will be modified accordingly. The notice of expiry will mention the reassessment. The subscriber or member may then terminate the contract by registered letter sent to the insurer within fifteen days after the day he became aware of the change. The cancellation will take effect one month after the dispatch of this letter ... In the absence of this termination, the modification of the contribution will take effect as from the expiry "; these latter provisions do not contravene those of the particular clauses; that they thus opened to the company AXA France the faculty of unilaterally modifying its tariffs, provided to justify a motive of a technical nature "(TA Nice, June 6, 2008, CCI of the VAR, n ° 0403952). The analysis of the administrative case law makes it possible to convince oneself of the importance of the general conditions of sale within the framework of the execution of the public contracts and the precautions to be taken before committing definitively. In any case, nothing prevents the contracting authority from modifying the general conditions of sale that appear on the order form or the estimate submitted to it, to specify certain conditions, to strike or to paraphrase in the margin the stipulations that he wants to see apart. Such an amendment may indeed be regarded as a kind against a proposal made by the contracting authority, which the supplier will be free, in turn, to accept or not. If the provider accepts these modifications, the modified terms of sale will become the law of the parties ...... thus, contrary to the widespread idea, the administrative judge may have to settle a dispute on the basis of the general conditions of sale written by a candidate for a public contract. Vigilance is essential.