Public Procurement Lawyer
The law firm Palmier - Brault - Associés is a law firm specialized in public markets.
Under the supervision of Sébastien Palmier and Valérie Brault, the The firm's lawyers have developed a recognized expertise in public markets. The cabinet intervenes on a regular basis both in terms of advice and litigation to legally secure complex contractual arrangements and procedures for awarding contracts. public markets but also to defend the interests of public purchasers and companies before the administrative courts whether at the stage of the execution or execution of public markets.
One of the most important activities of the cabinet is in the legal representation public purchasers and economic operators in the litigation of the law of the public order in the matter of appeal in contesting the validity of the contract, compensatory remedies, judicial expertise, decennial guarantee ... ...
The firm's lawyers are experienced litigants: the expertise accumulated before the administrative and / or judicial courts enables them to assess with realism and without a priori the relevance of the solutions they envisage for elected officials and local decision-makers. Each advice provided is accompanied by an assessment of the litigation risks and a strategy of circumstance.
The firm has developed a recognized expertise in the management of public services and the regime of local public companies whether they are governed (with or without legal personality), semi-public companies (SEML), companies SEMOP, local public development companies (SPLA) and local public companies (SPL).
In a litigation, our goal is not only to defend your interests in court, but above all to participate, from the first intervention, in the development of a strategy.
Who should apply
the code of public contracts?
Public persons subject to the Code des Marches Publics
The code of public markets applies to the State and its public administrative establishments, but not to its public industrial and commercial establishments, most of which are subject to Ordinance No. 2005-649 of 6 June 2005. It also applies to local authorities and local public establishments, whether administrative or industrial and commercial. Since the law n ° 2011-525 of May 17, 2011, the public offices of the habitat, although local public institutions, are not subjected to the code of the public markets, but at the order of June 6, 2005.
When these persons are contracting authorities, their purchases are governed by the first part of the code. When acting as a network operator, they constitute contracting entities. Their purchases are then subject to specific rules set in the second part of the code. The regime applicable to them is commented in part five of this guide.
The public health establishments which, since the law n ° 2009-879 of July 21st, 2009, are public administrative institutions of the State and no longer local public establishments, as well as the establishments of the service of health of the armies are subjected to certain specific provisions (formalized procedure thresholds applicable to local authorities, special payment deadlines). Interhospital unions are subject to the same regime as health facilities.
Some private people
Private persons do not, in principle, fall within the scope of the Code of public markets. The situation is different in the following cases:
- When a private person acts as agent of a public person subject to the code of public marketsit must, for contracts awarded pursuant to this mandate, comply with the provisions of this code. It should be noted that the mandate agreements are subject to the code of public markets ;
- Private legal entities that participate in a grouping of orders with public entities subject to the code of public markets must, for their purchases made within the framework of the group, apply the rules provided for by the code;
- Social security organizations apply the provisions of the Code of public markets, pursuant to Article L. 124-4 of the Social Security Code and the Order of 16 June 2008 regulating the markets of social security organizations.
We must take care that an association, a legal entity under private law, when it is only a "false nose" of a public person, must be considered as a transparent association. It must then apply the market rules applicable to that public person.
Other public or private persons
Certain public or private persons, although not subject to the code of public markets, are subject to competition requirements imposed by Community law, as long as they can be classified as contracting authority or contracting entity. These organizations fall under the regime of Ordinance No. 2005-649 of 6 June 2005, as amended, relating to the contracts awarded by certain public or private persons not subject to the Code des public markets and its implementing decrees.
Dual contracts shall be awarded to public administrative establishments whose status includes research, including public institutions of a scientific, cultural and professional nature, public scientific cooperation establishments and public institutions of a scientific and technological nature. technology. They are in principle subject to the code of public markets but their purchases for the conduct of their research activities fall under the order of 6 June 2005.
Public or private persons subject to the order of 6 June 2005 may decide to voluntarily apply the rules provided for in the Code of public markets (Article 3-II of this Ordinance).
This choice can be made:
- generally, for all of their purchases or for certain purchases determined according to their purpose (such or such type of supplies, for example) or their destination (in the context of such or such purchase transaction, for purchases made jointly with another purchaser or for the purchases of such or such user service, for example), which supposes an express decision of the competent authority;
- or on an ad hoc basis, in a particular contract, by making explicit reference to the articles of the Code in the consultation documents and contract documents of the contract.
Where the purchase is carried out jointly by a contracting authority subject to the code of public markets and a public or private person subject to the order of 6 June 2005, the contract must be placed in application of the code of public markets.
Is the proposed contract a public contract?
The definition of public markets figure in article 1 of the code. They should not be confused with other contracts under different legal regimes (public works public service delegations, partnership agreements, sales contracts in the future state of completion, administrative long-term leases, authorizations for temporary occupation of the public domain ...).
A contract concluded to meet a need
A public contract is a contract that must meet the needs of the contracting authority for supplies, services and works. The public markets are contracts establishing the will agreement between two persons with legal personality. A unilateral decision can not be a market, as long as it does not hide a contract. The purpose of the contract, which specifies the need for the public body, is a fundamental element that must be precisely defined. All contracts subject to the code of public markets have the character of administrative contracts.
A public contract is concluded for a consideration
Benefits must be made in exchange for a price. When the remuneration of the administrative counterparty is substantially related to the results of the operation of a service or a work, the contract can not be described as a public contract.
In the majority of cases, the contract will result in the payment of a sum of money by the public corporation. When the administration receives benefits and the payment made can be regarded as their counterpart, it constitutes a price, whatever the qualification given by the parties: a subsidy can thus be requalified in price and the contract in the market.
The price is not necessarily paid by the buyer. The onerous nature may, in fact, result from the abandonment by the public purchaser of a receipt arising from the execution of the contract. This will involve, for example, the authorization given to the owner of a street furniture market or the publishing market of a municipal bulletin, to be paid for by the advertising revenues generated by it, or the authorization given to the contracting party to sell the sand or gravel taken from a watercourse, which he has cleaned up
In this case, the public purchaser will be careful to respect the principles of public accounting. Are not public markets Contracts which exclude payment from the other party and which are characterized by payment by the latter of a fee or a price to the administration. This is the case of contracts of occupation of the public domain, sales of state property or offers of competitions. The offer of competition is a contract by which a person interested in carrying out public works undertakes to provide, free of charge, a participation in the execution of this work.
This participation may be financial or in kind (provision of land or labor or provision of services).
A public contract is concluded with a public or private economic operator
A contract is a contract signed between two separate persons, each with legal personality.
The buyer's counterparty must be an economic operator, ie an entity, irrespective of its legal status and method of financing, which carries on an economic activity.
The Council of State has held that public authorities may not award a public contract "where, having regard to the nature of the activity in question and the particular conditions under which it operates, the third party to whom it is addressed can not be regarded as an operator in a competitive market ".
Certain orders, of a social nature in particular, may thus be placed with bodies which, given the nature of their activity and the conditions under which they operate, can not be regarded as economic operators. The potential contract that binds them then to the community can not be analyzed as a public contract.
A public person may apply for the award of a public contract. However, the procedures for the intervention of the public candidate must not distort the conditions in which competition between this public entity and other companies is exercised, in order to respect the principle of equal access to public procurement. and competition law.
The public body, which is bidding, must therefore be able to justify, where appropriate, that the proposed price has been determined, taking into account all the direct and indirect costs involved in forming the price of the service which is the subject of the tender. contract, and that it did not receive any benefit from the resources or means allocated to it as part of its public service mission in order to determine that price.
Is it possible to negotiate in the silence of the regulation of the consultation?
A public buyer, who has not mentioned the possibility of negotiation in its settlement of the consultation, can he still negotiate with his candidates?
Response of the Ministry of the Economy, Productive Recovery and Digital published in the OJ Senate of 21/08/2014
Under Article 59 (I) and Article 64 (I) of the Code of public marketsthere can be no negotiation with the candidates in open bidding and restricted bidding. The recourse to the adjustment provided for in Articles 59-II and 64-II of the Code of public markets does not allow to engage with the successful candidate a negotiation likely to call into question the conditions of the initial call for competition and to affect the principle of inviolability of the offers (CAA of Nantes, June 26th, 2003, SDIS Calvados, n ° 02NT00006).
Similarly, in the context of an adapted procedure, if the contracting authority has not planned negotiations in accordance with Article 28 of the Public Procurement Code, it may not enter into this negotiation with the candidates. The circular of 14 February 2012 on the Guide to Good Practice in Public Procurement (point 10.3.2.2) recalls that the use of negotiation must be expressly indicated at the start of the consultation procedure, in the public notice of call for tender or in the documents of the consultation. Article 42 of the Code des Marches Publics requires the contracting authority to define in the consultation documents the main characteristics of the procedure and the choice of the tender.
Consequently, if Article 28 of the Code allows, in general, the contracting authority to resort to negotiation in an adapted procedure, it is for that authority to expressly indicate, for each consultation, whether it intends, in fact, make use of this faculty.
The absence of such an indication from the start of the procedure can not be modified during the procedure and therefore prevents any negotiation.
Does an inhabitant of a municipality have an interest in acting against a public contract concluded by his community?
Mr. Jean Louis Masson asks the Minister of the Interior if an inhabitant of the municipality has an interest in taking action against a public contract concluded by his community and, if so, what is the time limit for enforceable appeal?
Recourse against public contracts is essentially open to candidates. Thus, the pre-contractual and contractual referred, provided for in articles L. 551-1 and following of the code of administrative justice, can be exercised only by the persons "who have interest to conclude the contract and are likely to be harmed" by the breaches invoked, pursuant to Articles L. 551-10 and L. 551-14 of the said Code.
Can also challenge the validity of the market foreclosed competitors, "within a period of two months from the completion of the appropriate publicity measures" of a notice of award (Council of State, Assembly, July 16, 2007, Company Tropic works signaling, No. 291545). A citizen may, however, contest a public contract by the action of a municipal taxpayer on behalf of the municipality, codified in Articles L. 2132-5 and following and R. 2132-1 et seq. local authorities.
However, this action is inadmissible if the irregularities for which the taxpayer intends to take legal action have not caused the municipality any damage of such a nature as to justify such actions (EC, 16 January 2002, Mondolini and Luciani, No. 231389 , 231390 and 231391). In the absence of the contract itself, the public may contest the deliberation approving the award of the contract, within two months after publication of said deliberation.
In addition, the Council of State has opened a new appeal, distinct from the precedents, to any third party likely to be harmed by the conclusion of the contract or its clauses in a sufficiently direct and certain manner (EC, Assembly, April 4 2014, Department of Tarn-et-Garonne, No. 358994). These third parties can only contest the defects of the contract directly related to the interest harmed or of such gravity that the judge should raise them automatically. In return, the same third parties can no longer appeal against a detachable act of the contract, such as a decision approving the award. This extension is also open only in respect of contracts signed as from the date of the aforementioned decision.
Can an offer be declared unacceptable for purely budgetary reasons?
Mr François André draws the attention of the Minister of the Economy and Finance to the concept of unacceptable supply of public contracts. This notion is indeed the subject of a very precise definition in Article 35 of the Code des Marches Publics. Thus, any offer "whose conditions for its implementation do not comply with the legislation in force, or if the credits allocated to the market after assessment of the need to be fulfilled do not allow the contracting authority to finance it, must be qualified as such". While the definition is appropriate for most of the situations encountered, some actors within the communities question the relevance of the exclusively budgetary motive retained in the second part of this definition. He wished to know what steps the Government could take to provide the contracting authority with an ex officio capacity for analysis, thereby ensuring that not only the best choice was chosen, but that it was not chosen when they are all obviously exorbitant.
In addition to the case of the offer, the execution of which would be in breach of the legislation in force, Article 35, I, 1 ° of the Public Procurement Code defines the unacceptable offer as that for which "the budgetary appropriations allocated to the market after evaluation of the requirement to satisfy do not allow the contracting authority to finance it. An offer whose amount significantly exceeds the forecast estimate made by the contracting authority can only be considered unacceptable if it can establish that it does not have the means to finance it. The mere fact that the amount of the tender is greater than the estimated amount of the contract is not such as to qualify it as an unacceptable offer within the meaning of Article 35 (EC, 24 June 2011, public office of the interdepartmental habitat of Essonne, Val d'Oise and Yvelines, No. 346665).
The contracting authority must be able to demonstrate that it does not have the necessary budgetary appropriations. It is therefore not possible to determine a precise threshold from which the overrun of the budget allocated to the operation could be recorded irrespective of the financial situation of the buyer. The unacceptable nature of the offer is directly related to the own funding capacity of each contracting authority. It is therefore up to the latter to carry out the forward-looking assessment of the fair and realistic amount of the contract, so as to allow the completion of the competitive bidding procedure (EC, 24 November 1997, Préfet de Seine et Marne against OPAC de Meaux, n ° 160686). If, in the context of formalized procedures, the public purchaser has the obligation to eliminate unacceptable offers without classifying them from the outset, he may, on the other hand, in an adapted procedure, admit to the negotiation the candidates who submitted tenders. unacceptable, in accordance with the principle of equal treatment between candidates. At the end of the negotiations, bids that remain unacceptable must be rejected without being filed (EC, 30 November 2011, EURL Qualitech, No. 353121).
Contracts awarded under the adapted procedure thus offer public purchasers the option of obtaining a market price adjustment that is as close as possible to their financing capacity. In addition to the mechanism for eliminating unacceptable offers provided for in Article 35 of the Public Procurement Code, public purchasers still have other tools enabling them to encourage the submission of competitive bids. In particular, they may assign a significant weight to the price criterion in order to encourage the submission of competitive bids.
In case of equivalence of supply, is the contracting authority obliged to award the contract to an artisan?
A contracting authority shall consider whether, when analyzing the tenders, it is obliged to grant a preferential right to an offer submitted by a candidate who qualifies as an artisan under the provisions of Article 53. -IV-1 of the Code des Marches Publics?
When awarding a contract, a right of preference is granted, at equal price or equivalent of offers, to the offer made by a cooperative workers' association, a group of agricultural producers, an artisan , a cooperative society of artisans or a cooperative society of artists or adapted companies. Contracting authorities may, however, take this "preference" into account only on the condition that the price or the equivalence of offers has been previously demonstrated. With regard to the purchase of foodstuffs, public purchasers have for many years been resorting to an analysis of multicriteria offers in order to find the most economically advantageous offer, aware that price can only be part of the choice. next to qualitative criteria. Finally, it is not wise to speak of the criterion of "proximity", since localism, beyond the notion of short circuit developed above, remains prohibited.
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 why it is up to the economic operators concerned to check that this derogation is respected by the contracting authorities.
Adapted procedure, is it mandatory to negotiate in the cases referred to in article 35 - II of the procurement code?
Mr Fabrice Verdier draws the attention of the Minister of the Economy and Finance on the modalities of application of Article 28-II of the Public Procurement Code making a reference to the provisions of Article 35-II . Article 28-II of the Public Procurement Code relating to contracts awarded under an adapted procedure provides that 'the contracting authority may decide that the contract will be awarded without prior publicity or call for competition in the situations described in point II of the Article 35 [...] ".Correlatively, Article 35-II deals with the conditions under which markets may be negotiated without prior publicity and without competitive bidding. It therefore asks the Commission to clarify whether, as regards the contracts described in Article 28-II referring to the conditions of Article 35-II of the Code, the contracting authority has full discretion in the implementation of a negotiation procedure or if the latter is mandatory. In other words, if it appears that a contract falls under the provisions of Article 28-II referring to the conditions of Article 35-II, it asks whether the contracting authority is free to provide for such a negotiation phase. that he is admitted to the procedure adapted, or if he can make the choice to waive it.
Article 28 of the Code des Marches Publics (CPM) concerns contracts awarded under an adapted procedure, because of their estimated amount or because they relate to services in the scope of Article 30. CMP leaves it up to the contracting authorities, for these contracts awarded under an adapted procedure, to exercise their freedom to organize their procedure, while respecting the fundamental principles of public procurement, namely freedom of access, equal treatment of candidates and transparency. procedures. Article 28 (II) states, however, that such contracts may be awarded without publicity or competition where one of the assumptions described in Article 35-II is fulfilled. In fact, it appears that, in these cases, such as, for example, compelling urgency, complementary markets or contracts which can only be entrusted to a specific undertaking, competitive tendering would be impossible, useless or inefficient. look at the characteristics of the market or the circumstances of the purchase. However, while these provisions offer public purchasers the possibility of concluding private contracts without prior formalities, they do not require them to use them. It is always possible for them to renounce it and to proceed, including in these cases, with advertising and competitive measures with or without a negotiation phase.