Focus on raising thresholds for public procurement
A " boost For SMEs but beware of bad practices!
It is in its edition of September 11th that the national daily The echoes confirmed the information that the Government was going to raise the threshold below which public contracts could be concluded without being subject to advertising and competition requirements. This threshold would consequently increase from € 25,000 to € 40,000 excluding tax. Several elements must be examined: the origin of the re-evaluation and its expected effects (Point 1), maintaining a common sense obligation (Point 2) and a comparatist approach with the other Member States of the European Union (Point 3).
Item 1: The origin of the re-evaluation and its expected effects: boosting SMEs' access to public procurement
The threshold below which markets can be signed without advertising or competitive bidding has not always been € 25,000 excluding taxes. On the contrary, it has been the subject of several changes. Although it is not necessarily relevant here to make a census of all the evolutions, note however that the regulatory nature (Cons Cons, 13 August 2015, n ° 2015-257L) of the threshold justified that the Council of State censorship in 2010 its passage from 4 000 € to 20 000 € HT (EC, February 10, 2010, Pérez, req. No. 329100; JCP Adm., 2010, comm. 2068, note F. Linditch).
Codified in the new Article R. 2122-8 of the Code of public order, the maximum amount of contracts that can be signed by mutual agreement will soon increase in a reform through the Ministry of Territorial Cohesion and relations with local authorities. Precisely, it is in the presentation of the bill " Commitment and proximity That the re-evaluation of the threshold has been announced. The institutional origin of the reform is fraught with meaning.
Indeed, the increase of the threshold could quite well have been driven by Bercy. It is indeed the Ministry of Territorial Cohesion that " the boost " has come. As a result, we can in any case consider that once again, the public authorities seize the thorny issue of the access of VSEs and SMEs to the public purchase. The idea barely hidden behind this upcoming reform is to encourage local public spending by boosting contracts signed for a value of up to € 40,000. This is in any case what affirmed the Council of State in 2017 by pronouncing on the legality of the passage of 15 000 € to 25 000 € HT: « the need to avoid the imposition of procedures for contracts of a small amount the implementation of which would not be essential to ensure the efficiency of public procurement and the proper use of the funds in some cases, dissuade economic operators from applying for (CE, March 17, 2017, Bar Association at the Paris Bar, req. No. 403 768).
In this case, it is the VSEs and SMEs that are the first targets. Major industrial groups are more focused on much larger markets. On the other hand, let us consider that it is not just the very small and medium-sized enterprises in general that are targeted but the local fabric or " the territory »Buyers. The announced objective is that - 50% of the public markets are signed with VSEs and SME against 32% today.
However, although it is not legally sustainable to say so loudly, the reassessment is well supported by the Ministry of the Territories. The national politico-social context seems favorable to local investment, eat local And in general, to local consumption. Consequently, we can legitimately consider that this increase of the threshold goes in the direction of this objective.
Issue 2: Maintaining a common sense obligation on buyers
The objectives of the re-evaluation of the threshold, if they are laudable, expected or even necessary, may nevertheless represent a non-negligible risk in terms of legality and compliance with the Public Order Code. Precisely, regardless of the amount set at the heart of Article R. 2122-8 of the Public Order Code, it is not a question of " blank check Given to public purchasers. On the contrary, the fundamental principles of public order ultimately apply from the first euro spent by a buyer.
Therefore, Article R. 2122-8 of the Public Order Code teaches buyers some common sense elements so as not to violate the immanent principles of public procurement: make sure to choose a relevant offer; make good use of public money and finally, do not sign systematically with the same economic operator.
In practice, the buyer faced with the satisfaction of a need less than 40 000 € HT must first ensure that the good or service is well below the above amount. Then, he will proceed to several consultations through the specifications he will keep in his possession. Finally, he will sign the contract with the operator who has submitted the most economically advantageous tender.
Point 3: Towards European harmonization of thresholds?
The law of public procurement contributes, if it still has to be demonstrated, to the integration of European Union law into the internal law of the Member States (v ° in this sense, J. Lebied, 'Integration of the Union European law and the law of public control, the lever of integration and the vector of legitimation ", STREET2019, no. 631, p. 495). Therefore, the essential provisions of the French Public Order Code are found in the national laws of the Member States of the European Union. In other words, it is not tenable for the Court of Justice of the European Union to impose, on the basis of the Treaties, the fundamental principles of non-discrimination and equal treatment between candidates if national rights are not respected. harmonized. However, the threshold below which buyers can sign over the counter has never been unified within the European Union. Let us hope that the European authorities will soon set a single threshold for all Member States.
For illustration :
Britain : from € 12,000 at € 30,000
Belgium : 25 000 €
Italy : 40 000 €
Germany : 50 000 € on average (the amount fluctuating according to the Länder / A when this possibility for the regions?)