Order No. 2005-649 of 6 June 2005 concerning contracts awarded by certain public or private persons not subject to the Code public markets and its implementing decrees of 20 October 2005 and 30 December 2005 transposed the two Directives public markets March 31, 2004 with respect to organizations that are not subject to the Code public markets.
This regulation requires buyers who are not subject to the Code's regulations to public markets to comply with similar regulations on purchases but with certain peculiarities.
Order No. 2005-649 of 6 June 2005 governs contracts launched by private-law bodies or public Law other than those subject to the Code of public markets (State and its establishments other than those of an industrial and commercial nature, local authorities and local public institutions) with legal personality and which have been created specifically to satisfy needs of general interest having a character other than industrial or commercial , for which :
- the activity is financed mainly by a contracting authority subject to the Code of public markets or the prescription;
- management is subject to control by a contracting authority subject to the Code of public markets or the prescription;
- the administrative, management or supervisory body is composed of members of which more than half are appointed by a contracting authority subject to the Code of public markets or the prescription;
The Banque de France, the Institut de France, the French Academy, the Academy of Inscriptions and belles-lettres, the Academy of Sciences, the Academy of Fine Arts and the Academy of Moral and Political Sciences; the Caisse des Dépôts et Consignations, the public administrative establishments with a research mission in their statutes, the private housing agencies at low rent (OPHLM), the local public companies (SPL) and the local public development companies (SLA) and private law bodies established with a view to carrying out certain activities together:
- contracting authorities subject to the Code of public markets ;
- by contracting authorities subject to this order;
- contracting authorities subject to the Code of public markets contracting authorities subject to this order.
The procurement procedures provided for in the order of 6 June 2005 are similar to those provided for in the Code of public markets (Open or restricted call for tender, negotiated procedure, competitive dialogue, competition, contracts awarded on freely defined terms). However, there are many differences and peculiarities.
Cabinet Palmier - Brault - Associés is a law firm specialized in the law of the ordinance of June 6, 2005. The lawyers intervene very regularly as well in the matter of advice as of litigation to secure the procedures of handover of the contracting authorities and the entities contracting authorities governed by the order of 6 June 2005 but also to defend their interests before the administrative and judicial courts at the stage of the awarding or execution of contracts.
With his experience in public and private law, the Palmier cabinet & partners has drafted a specific practical guide for the award of contracts subject to the order of 6 June 2005. This guide is enriched by all the changes that have occurred since the entry into force of this regulation and contains a great deal of case law which has come to specify the regime of this type of contract (see the section on the firm's books).
N ° 12-007-M0 of February 10, 2012
NOR: BCR Z 12 00016 J
MARKETS OF PUBLIC HABITAT OFFICES - CONSEQUENCES OF THE LAW
n ° 2011-525 OF 17 MAY 2011 OF SIMPLIFICATION AND IMPROVEMENT
THE QUALITY OF THE LAW ("WARSMANN" ACT)
Legal analysis in response to questions about regime change
DPOs, which are no longer subject to the Code public markets,
but with the order n ° 2005-649 of June 6th, 2005
Date of application: 10/02/2010
PUBLIC OFFICE OF THE HABITAT; ADMINISTRATIVE CONTRACT; PRIVATE LAW AGREEMENT; MORAL PERSON OF PRIVATE LAW; MORAL PERSON OF PUBLIC LAW
DOCUMENTS TO ANNOTATE
DOCUMENTS TO BE ABROGRATED
RECIPIENTS FOR APPLICATION
DDFIP DRFIP DOM
GENERAL DIRECTORATE OF PUBLIC FINANCE
Sub-Directorate of Accounting and Financial Management of Local Communities
Public Housing Offices (DPOs) are local public establishments of an industrial and commercial nature governed by Articles L. 421-1 et seq. Of the Construction and Housing Code (CCH).
In application of Article 1st of the Code of public markets (CMP), " the public markets are the contracts entered into between the contracting authorities defined in Article 2 and the operators public or private sector, to meet their needs for works, supplies or services ".
Article 2 states that " the contracting authorities subject to this code are:
- 1 ° The State and its public establishments other than those having an industrial and commercial character; - 2 ° Local authorities and local public institutions ".
However, article 132 of the law n ° 2011-525 of May 17, 2011 subjects the contracts passed by the public offices of the habitat (OPH) to the ordinance n ° 2005-649 of June 6, 2005, leaving them thus of the scope of the Code of public markets, by inserting the following article L. 421-26 in the Code of the construction and the housing:
" The markets of the public boards of the habitat are governed by provisions applicable to the contracts of public or private persons subject to the rules Order No. 2005-649 of June 6, 2005 relating to contracts awarded by certain public persons or not subject to the Code of public markets ".
This article is applicable since May 19, 2011, except for contracts in the process of execution or execution on the date of entry into force of the law. The application of the 2005 ordinance entails that of Decree No. 2005-1742 of 30 December 2005 laying down the rules applicable to contracts awarded by the contracting authorities mentioned in Article 3 of the Procurement Ordinance of 6 June 2005. by certain public or private persons not subject to the Code of public markets.
The 2005 ordinance provides for procurement rules and the Decree of 30 December 2005 also contains some elements concerning financial implementation. However, it is recalled that pursuant to Article 3-II of the Ordinance, the provisions of this Ordinance shall not preclude the possibility for the contracting authorities to voluntarily apply the award rules or implementing rules provided for in the Code of public markets ".
An DPO who wishes to comply with the rules of execution of the CMP must provide for it, either in a deliberation or in the consultation rules. Indeed, the mere mention of the submission to the CMP, without further specification, could be part of a willingness to submit to the only rules of the award provided by the CMP. In those circumstances, the provisions relating to financial implementation are not applicable.
In contrast to the Code of public marketswhich, in Title IV, regulates the enforcement public markets, the order of 6 June 2005 and its implementing decree of 30 December 2005 leave a great deal of leeway for the contracting parties to define their relations. Thus, most of the provisions that concern the accountant must be provided for in the contract.
Therefore, in the present state of the regulations in force, this instruction recalls the legal framework of the contracts of the DPOs subject to the order n ° 2005-649 of June 6, 2005.
THE DEPUTY MANAGER OF ACCOUNTING AND FINANCIAL MANAGEMENT OF LOCAL AUTHORITIES
CHAPTER 1 NATURE AND FORM OF THE MARKET
Contracts awarded by the public housing offices (DPOs), no longer subject to the Code des public markets, are no longer administrative by law determination.
It is therefore appropriate to apply the jurisprudential criteria for determining the administrative nature of a contract.
1. NATURE OF THE MARKET
Contracts awarded in accordance with the provisions of the Code of public markets are administrative contracts by law determination 1. There is no equivalent provision in respect of contracts awarded in accordance with the provisions of Ordinance No. 2005-649 of 6 June 2005. Their nature is deduced from the traditional criteria of the administrative contract.
The contracts subject to the order may thus be either administrative contracts or private law contracts.
They are administrative contracts if they fulfill the following two criteria:
- the first criterion is the quality of the contractors: one of the contracting parties must be a legal entity public Law 2 ;
- the second criterion is an alternative criterion: a contract can be administrative because of its exorbitant clauses of common law (the exorbitant clause is either a clause excluded in private law contracts, or an inequality clause). 3) or because of its purpose (a contract relating to the organization or the execution of a public service is an administrative contract).
Are therefore administrative contracts entered into by a legal person of public Law which associate the contracting parties of the administration with the execution of a public service mission or which include an exorbitant clause of the common right.
In the event that they do not satisfy one of these two criteria, the contracts subject to the order of 6 June 2005 are private-law contracts, which fall within the jurisdiction of the judicial court.
(1) Law No. 2001-1168 of 11 December 2001 on urgent economic and financial measures (known as the MURCEF law), article 2.
(2) Except in exceptional circumstances, in particular where one of the co-contractors is an agent of the legal person of public Law (see Articles L. 1611-7 and D. 1611-16 to 26 of the General Code of Territorial Collectivities).
(3) The exorbitant clause is "the clause for the purpose of conferring on the parties rights or assuming obligations, alien by their nature to those which may be freely consented to by any person under the civil laws and commercial "(Council of State, Sect., October 20, 1950, Stein - Lebon, page 505). Example: power of unilateral modification of the contract, termination. The exorbitant clause is an unequal clause, adopted in the general interest.See also EC judgment no. 319103 of 3 June 2009, GIP map of the health professional: in the event of submission to the general administrative clauses, "this reference must be regarded as introducing into the contract clauses exorbitant common law" .
1.2. SPECIAL CASE: PUBLIC WORKS CONTRACTS
The administrative judge has jurisdiction over administrative contracts. Thus, a private law contract is in principle submitted to the judicial judge and not to the administrative judge.
Article 4 of the law of 28 pluviose year VIII gave jurisdiction to the administrative judge to hear the litigation of public works. This article has since been repealed by Article 7, IV, 11 ° of Ordinance No. 2006-460 of 21 April 2006.
However, despite this repeal, the rule remains unchanged: the Dispute Tribunal (TC) has long detached from the legal determination to specify the judge responsible for public works and set the definition.
Public works are real estate works 4 executed on behalf of a public person for general utility purposes 5 or by a public person as part of a public service mission 6.
The Council of State (EC) considers that the work carried out on behalf of a housing organization at low rent, when it is a legal entity of public Law, are public works carried out for a purpose of general utility 7. Before the administrative nature of the contracts submitted to the CMP was affirmed by the aforementioned MURCEF law, the case-law considered that the contracts awarded by the OPHLMs to perform their mission of general interest were administrative contracts. 8.
The judge recently reiterated that the construction work of a residential complex executed by the OPACs 9 and the OPHLM 10 , legal entities now replaced by DPOs 11, are public works.
The jurisprudential criteria thus make it possible to affirm that the real estate works of DPOs are public works and that, therefore, they fall within the jurisdiction of the administrative judge. Contracts signed to execute them are therefore administrative contracts.
(4) EC, 10/06/1921, Municipality of Montségur, p. 573.
(5) Conclusions Emmanuel GLASER on CE, 11/08/2008, SAGEP, n ° 289329.
(6) TC, 28/03/1955, Effimieff, p. 617.
(7) EC, 30/12/1927, Sieur Tallet, p. 1303.
(8) TC, 19/03/1979, OPHLM of the Ardennes, No. 02112.
(9) TC, 23/06/2003, OPAC of Isère, n ° C3355, TP 714.
(10) TC, 20/02/2006, OPHLM of Nice, n ° C3491, p. 629.
(11) Ordinance No. 2007-137 of 1 February 2007.
2. FORM OF THE MARKET
2.1. CASES WHERE THE WRITTEN FORM IS COMPULSORY
Article 12 of Decree No. 2005-1742 of 30 December 2005 states that markets necessarily
where the amount is equal to or greater than the thresholds of the formalized procedures set out in
I of Article 7 of this text (including for service contracts in Article 8).
For works, the threshold is fixed at 5,000,000 euros excluding taxes and, for the supply and service contracts, 200,000 euros excluding tax.
This provision is very different from the provisions of the Code of public markets since :
- the threshold of the writing is set at 15 000 euros HT in Article 11 and that beyond the Community thresholds an act of engagement is necessary;
- contracts resulting from formalized procedures must take a specific form in Article 12 (mandatory information).
Moreover, the decree of 30 December 2005 referred to above does not allow to affirm that the formalized procedures to which it is resorted provide any framework to the form of the formalized market: it is, for example, nowhere specified that, in the In the context of a call for tenders, the candidate submits a signed offer, which is then co-signed by the representative of the contracting authority if it is successful. The existence of an act of commitment signed by the parties is therefore not an obligation and the writing that constitutes the market, protean, may therefore be other than an act of engagement.
However, the existence of a commitment document is necessary for the design-build contracts provided for in article 41-1 of the 2005 decree (see article 41-1, VI 3 °).
Similarly, when Law No. 85-704 of 12 July 1985, "MOP Law" applies, the contract takes the form of a written contract, the remuneration of the project manager being fixed by contract.
2.2. CASE WHERE THE WRITTEN FORM IS NOT COMPULSORY
For contracts awarded under an adapted procedure (contracts whose amount is less than Community thresholds)
For contracts below thresholds of € 5,000,000 excluding taxes for works and € 200,000 excluding taxes for services and supplies, the text does not indicate any form of constraint. In theory, therefore, they can only be oral markets, even if it is not the practice of public purchasers to conclude oral contracts.
However, if the parties agree, for example, on the payment of an advance, advance payment or review clause, the absence of any written document indicating that risk may result in the absence of documentary evidence enabling the public accountant to verify its liquidation. Such a defect of voucher is then likely to create an obstacle to payment.
For service contracts not listed in Article 8 of Decree No 2005-1742, whatever their amount
Service contracts whose purpose is for services not mentioned in Article 8 of the Decree of 30 December 2005 are not subject to the same decree.
These markets, regardless of their amount, even beyond the thresholds mentioned above, do not necessarily have to take a written form. For the record, the services provided by the Decree of December 30, 2005 are:
- " 1 ° Maintenance and repair services;
- 2 ° Land transport services, including armored vehicle services and mail, excluding rail transport services;
- 3 ° Air transport services for passengers and goods;
- 4 ° Mail transport services by land and air transport;
- 5 ° Electronic communications services;
- 6 ° Financial services: insurance services, banking and investment services, subject to provisions of 2 ° and 3 ° of article 7 of the order of 6 June 2005 referred to above;
- 7 ° Computer and related services;
- 8 ° Research and development services, subject to the provisions of paragraph 4 of Article 7 of the order of 6 June 2005 referred to above;
- 9 ° Accounting, auditing and bookkeeping services;
- 10 ° Market research and survey services;
- (11) Management consulting services and related services, subject to the provisions of paragraph 10 of Article 7 of the order of 6 June 2005 referred to above;
- 12 ° Architectural services; testing and technical analysis services;
- 13 ° Advertising services;
- 14 ° Building cleaning services and property management services;
- 15 ° Publication and printing services paid on a fee or on a fee basis contractual;
- 16 ° Street and garbage services, sanitation services and services analogous ".