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.