The law firm Palmier - Brault - Associés is a law firm specialized in public markets.
The firm is made up of experienced and responsive lawyers who regularly defend the rights of subcontracting companies according to the problems encountered (implementation of the direct payment procedure, claim for payment of additional work, termination or modification of the special act of subcontracting, absence of declaration of subcontracting, absence of approval of the payment conditions of subcontractors).
The lawyers of the firm, experts in subcontracting law, are constantly seeking, and with great availability, to find creative and innovative solutions to assist subcontracting companies in all procedures, both in advice and in litigation.
PRESENTATION OF THE GENERAL FRAMEWORK
SUBCONTRACTING IN PUBLIC AND PRIVATE MARKETS.
Law n ° 75-1334 of 31 December 1975 as amended relating to subcontracting defines the general regime of subcontracting applicable to public or private contracts, whether or not they constitute public markets.
Subcontracting is the operation by which an entrepreneur entrusts by a sub-contract, and under his responsibility, to another person called subcontractor the execution of all or part of the business contract or part of the public contract concluded with the contracting authority.
Subcontracting therefore involves the conclusion of two separate contracts:
- a main contract (public contract) concluded between the contractor (holder) and the contracting authority;
- a private law contract (subcontract or subcontract) concluded between the main contractor and another company (subcontractor).
It establishes a triangular relationship between the client, the owner and the subcontractor, but all these links are not the same nature.
In the case of public markets, this regime must be combined, on the one hand, with the provisions of the Code of public markets from decree n ° 2006-975 of 1st August 2006 modified and, on the other hand, with the provisions contained in the notebooks of general administrative clauses applicable to the markets considered.
In the case of private contracts, this regime must be combined with the rules of standard AFNOR P 03001 and, on the other hand, with the provisions contained in the specifications applicable to the markets considered.
The main contract
1 - Definition
The main contract can be defined as the contract concluded between the contracting authority and the main company. The law of December 31, 1975 qualifies it as a business contract or public contract. This double qualification results from the fact that the law governs both subcontracting in private law and public Law.
2 - Relations between the contracting authority and the holder
In accordance with the provisions of articles 1st of the law of 1975 and 113 of the Code of public markets, the holder remains personally and solely responsible, before the contracting authority, of the performance of all the obligations arising from the contract, whether they are performed by him or by a subcontractor. It is therefore solely responsible to the contracting authority for the proper performance of the contract.
Article 1 of law n ° 75-1334 of December 31, 1975:
" For the purposes of this law, subcontracting is the operation by which an entrepreneur entrusts by a subcontract, and under his responsibility, to another person called subcontractor for the execution of all or part of the works contract or part of the public contract concluded with the contracting authority ”.
Article 113 of the public markets :
" In case of subcontracting, the holder remains personally responsible of the performance of all the obligations resulting from the contract ”.
This personal responsibility finds its basis in the contract which links the company to the contracting authority and which implies the obligation of personal performance of the contract, without however prohibiting the use of subcontracting.
In this regard, the circular of 7 October 1976 on the regime of subcontracting in the public markets specifies that contract holders:
" Remain personally responsible to the community public performance of all their contracts, even when they subcontract part of them, whatever the payment methods of the subcontractors. The lack of responsibility of the sub- dealing with the public purchaser is one of the main differences between outsourcing and co-contracting ”.
The holder cannot therefore invoke the fault of his subcontractor or call him in guarantee in order to reduce his own responsibility with the contracting authority:
" Considering that it is not disputed that the company "Public works and research" ETRAREC was the holder of the public works contract concluded with the city of Lille on May 21, 1974, for the realization of the coating works of the land of "Moulin des Alouettes" sport; that these works were carried out by a subcontractor, the company "Vilbert Marbotte" with an elastosynthetic coating "Zénitan" type WL Foot Ball supplied by the company "Kemco-France", that disorders having appeared after the final acceptance of the work, the city of Lille sought before the administrative court of Lille the responsibility of the only company ETRAREC; that if the companies "Vilbert Marbotte" and "Kemco-France" had, at the time of the works, guaranteed the resistance of the coating for the duration of the guarantee given by the company "ETRAREC" to the owner and if these companies had taken out insurance, these circumstances did not have the effect of making the companies "Vilbert Marbotte" and "Kemco-France" parties to the public works contract concluded between the city of Lille and the contractor;
Considering that it results from the instruction that the city of Lille did not commit any imprudence in stipulating in the technical specifications that Zénitan coating could be proposed while this coating was listed in a non-exhaustive list of 11 possible coatings , that he must have the approval of the Minister of Youth and Sports, and have been the subject of a technical study by the laboratory of the National Sports Institute; that, consequently, the company ETRAREC is not founded to maintain that it is wrong that, by the judgment attacked the administrative court of Lille, to which it did not belong to stay the ruling until the conclusion of the litigation opposing, before the legal jurisdiction, this company to its subcontractor and to its supplier, retained its only responsibility because of the disorders having affected the coating and in execution of the commitments of total guarantee which it had subscribed at the time of the conclusion of the contract with the client "(CE December 18, 1987, SARL Etrarec, req.n ° 52300).
1 - Definition
The subcontract is the contract which is concluded between the holder of the public contract and the subcontractor. It is a private law contract which enables the contractor to have part of the services of his contract performed by a third party (CE July 21, 1970, Lachaud and Aubineau, req. N ° 66475).
2 - The absence of a relationship between the contracting authority and the subcontractor
There is no contractual link between the contracting authority and the subcontractor. This principle is constant in administrative law.
In a judgment dated March 6, 1987, OPHLM de Châtillon-sous-Bagneux, the Council of State recalled this rule of principle in these terms:
" Considering that the provisions of the law of December 31, 1975 relating to the direct payment of the subcontractors of certain contracts passed by the State, the local communities and the establishments and public enterprises had neither object nor effect to create payable by subcontractors of contractual obligations vis-à-vis the contracting authority; that the holder of the market remains only held, with regard to this one, of the execution of the contract as well for the works which he carries out himself as for those which were entrusted to a subcontractor; that, consequently, the conclusions of the Office Public d'Habitations à Loyer Modéré de Châtillon-sous-Bagneux cannot be accepted "(CE March 6, 1987, OPHLM de Châtillon-sous-Bagneux, req.n ° 37731).
The special subcontracting act, drawn up to obtain the subcontractor's approval and acceptance of its payment terms, is only signed by the contract holder and the contracting authority, and not by the subcontractor. dealing with. The signature of the latter only appears on the subcontract, a private law contract governing its relations with the holder, principal.
By definition, the contractual link is only between the public contract holder and his subcontractor and not between the contracting authority and the subcontractor. There is no contractual relationship between the contracting authority and the subcontractor.
There can be no litigation of a contractual nature between the client and the subcontractor since they are not bound by a contract (CE July 11, 1988, Chamber of Trades of Ille et Vilaine, req. N ° 56630 ):
" Considering that if during the extension works of the apprenticeship training center of Saint-Mao, the technical design office Amintas collaborated in the design and the realization of the increase in capacity of the installation of heating according to an agreement which it had passed with the architect of the operation, MX .., the CHAMBER OF TRADES OF ILL-AND-VILAINE, owner of the work was not party to this agreement; that the fact that the Chamber of Trades knowingly allowed the design office to act did not have the effect of creating a contractual link between it and the latter; that consequently, in the absence of any contractual link she could not ask him for compensation for the disputed faults; that the chamber of trades is not founded to question the technical design office Amintas ”.
Thus, in the absence of any contractual link and in spite of the faculty open to the subcontractor to directly receive the payment for the services performed by him, the contracting authority cannot ask him to repair the disputed defects (CE 2 February 1979, Roul Company, req.n ° 01647):
" In the absence of any contractual link between the State and the roul company and notwithstanding the option open to subcontractors to directly receive the payment for supplies and works executed by them, the Minister of Education could only ask to the only company costing the repair of faults found in the execution of lots 5 and 18; that, therefore, the company roul company is founded to ask for the annulment of the judgment of the administrative court of Châlons-sur-Marne dated November 4, 1975, as, by this judgment, the administrative court put in its load repairing 7 / 10ths of the amount of disorders found in the heating installations ”.
Likewise, the absence of a contractual link between the contracting authority and the subcontractor prohibits the latter from being declared jointly liable with the main contractor for the disorders observed (CE 27 January 1989, Sté Soprema, req. 80975):
" Considering that it results from the instruction that the SOCIETE SOPREMA intervened as a subcontractor of the lot "waterproofness" of the contract awarded on July 31, 1969 to the general contractor Pouget by the municipality of Menat for the construction of 'a post office ; that she had no contractual relations with the client; that as a result, SOCIETE SOPREMA is justified in maintaining that it was wrong that, by the judgment challenged dated February 13, 1986, the administrative court of Clermont-Ferrand declared it jointly liable with the company Pouget des disorders noted in the post office of Menat and condemned it to pay an allowance to the commune ”.
Some details on the subcontracting regime
1 - The ban on total subcontracting
Subcontracting can only relate to "Part of the contract concluded with the client". The holder can only subcontract the execution of "Certain parts of its market".
Article 112 of the Code of public markets :
"The holder of a public works contract, a public service contract or an industrial contract may subcontract the execution of certain parts of his contract provided that he has obtained acceptance from the contracting authority each subcontractor and the approval of its payment conditions ”.
There is no definition of total subcontracting, nor a minimum percentage of services to be performed personally by the contractor.
2 - The distinction of the subcontract from other contracts
The subcontract must be distinguished from co-contracting, which is the operation by which two or more entities agree between them in order to tender for a contract and to execute it if it is awarded to them. . It is a mode of contractual cooperation between entities of the same rank whereby when the contract is awarded to a group of companies, the lots are awarded to named contractors, who have, each as far as it is concerned, the quality contracting partner of the contracting authority.
N ° 12-012-M0 of May 30, 2012
NOR: BUD Z 12 00030 J
PUBLIC MARKETS - SUBCONTRACTING
Definition, implementation and execution
Application date: 05/30/2012
PUBLIC MARKET ; SUBCONTRACTING; LITIGATE
DOCUMENTS TO ANNOTATE
DOCUMENTS TO BE ABROGRATED
Instruction n ° 1 0-027-M0 of November 2, 2010
RECIPIENTS FOR APPLICATION
RGP TGP DOM RF T
Law n ° 75-1334 of 31 December 1975 as amended relating to subcontracting defines the general regime of subcontracting applicable to public or private contracts, whether or not they constitute public markets.
This legislative system, of public order, has undergone numerous modifications, notably through laws:
- n ° 81-1 of January 2, 1981 facilitating credit to companies;
- n ° 94-475 of June 10, 1994 relating to the prevention and the treatment of the difficulties of the companies;
- n ° 94-638 of July 25, 1994 tending to favor employment, integration and economic activities in the overseas departments, in Saint-Pierre-et-Miquelon and in Mayotte;
- n ° 96-609 of July 5, 1996 carrying various provisions relating to the Overseas;
- n ° 98-69 of February 6, 1996 tending to improve the conditions of exercise of the profession of road transport operator;
- n ° 2001-1168 of December 11, 2001 carrying urgent measures of economic and financial reform, known as law "MURCEF";
- and n ° 2005-845 of July 26, 2005 for the safeguard of companies.
In the case of public markets, this regime must be combined, on the one hand, with the provisions of the Code of public markets from decree n ° 2006-975 of 1st August 2006 modified and, on the other hand, with the provisions contained in the notebooks of general administrative clauses applicable to the markets considered.
The purpose of this instruction is to remind public accountants of the fundamental principles of subcontracting and to specify the conditions of application.
Any difficulty in applying this instruction must be reported under this stamp.
THE DEPUTY DIRECTOR OF ACCOUNTING MANAGEMENT
AND FINANCIAL OF LOCAL AUTHORITIES
DEFINITION OF SUBCONTRACTING BY LAW N ° 75-1334 OF DECEMBER 31, 1975 AMENDED
Article 1st Law No. 75-1334 of December 31, 1975 provides that " subcontracting is the operation by which an entrepreneur entrusts by a sub-contract, and under his responsibility, to another person called subcontractor the execution of all or part of the works contract or part of the contract public concluded with the contracting authority ".
Subcontracting therefore involves the conclusion of two separate contracts:
- a main contract (public contract) concluded between the contractor (holder) and the contracting authority;
- a private law contract (subcontract or subcontract) concluded between the main contractor and another company (subcontractor).
It therefore establishes a triangular relationship between the client, the owner and the subcontractor, but all these links are not the same.
1.1. MAIN MARKET
1.1.1. The main market, the first link in the triangular relationship following subcontracting
The main market can be defined as the contract between the client and the main company. The law of December 31, 1975 qualifies it as a business contract or public contract. This double qualification results from the fact that the law governs both subcontracting in private law and public Law.
The contract of enterprise, also called hiring of work, is a contract by which a person undertakes to do something for the other, for a price agreed between them (cf. article 1710 of the Civil Code).
In accordance with article 1st of the Code of public markets, " the public markets are the contracts concluded for consideration between the contracting authorities defined in Article 2 and economic operators public or private, to meet their needs in terms of works, supplies or services ”.
1.1.2. Relations between the contracting authority and the holder
In accordance with the provisions of articles 1st of the law of 1975 and 113 of the Code of public markets, the contractor remains personally and solely responsible, before the contracting authority, for the performance of all the obligations resulting from the contract, whether they are performed by him or by a subcontractor1.
This personal responsibility finds its basis in the contract which binds the company to the client and which implies the obligation of personal performance of the contract, without however prohibiting the use of subcontracting.
In this regard, the circular of 7 October 1976 on the regime of subcontracting in the public markets specifies that contract holders " remain personally responsible to the community public performance of all their contracts, even when they subcontract part of them, whatever the payment methods of the subcontractors. The lack of responsibility of the sub- dealing with the public purchaser is one of the main differences between outsourcing and co-contracting ”.
Thus, there is no contractual link between the client and the subcontractor. This principle is constant in administrative law.
1) CE, March 6, 1987, OPHLM de Châtillon-sous-Bagneux, n ° 37731.
1.2. SUBCONTRACTING CONTRACT
It is an agreement under private law which allows an entrepreneur to have part of his contract executed by a third party. By definition, the contractual link is only between the main contractor and his subcontractor and not between the client and the subcontractor.
1.2.1. Scope of subcontracting
Only the public markets of works, services or industrial markets can be partially subcontracted.
A supply contract cannot give rise to the subcontracting referred to by the aforementioned texts. A supplier who provides the main company with simple supplies such as standardized materials or a simple framework, without nevertheless being responsible for installation, cannot be considered as a subcontractor (cf. CAA Nantes, 2th room, December 30, 1999, Sté Biwater).
On the other hand, the service provider who participates in the execution of the main contract by applying to his supplies specific technical specifications, imposed by the main contractor, has the quality of subcontractor (CC ° 3th Civ., February 5, 1985, Pernot v / SCI the new markets of Osny). This is the meaning of article 112, paragraph 2, of the Code of public markets, which defines the industrial market as the market for the supply of equipment or prototypes designed and produced specially to meet the needs of the contracting authority.
Concerning the territorial field of application, articles 15-1 to 15-3 of the law of 1975, resulting from the law n ° 94-638 of July 25, 1994 tending to favor employment, integration and economic activities in the overseas departments, Saint-Pierre-et-Miquelon and Mayotte and of law n ° 96-609 of 5 July 1996 laying down various provisions relating to the overseas territories, provide for its application in Mayotte, in Saint-Pierre- et-Miquelon, in New Caledonia and in French Polynesia. Furthermore, ordinance n ° 2010-137 of February 11, 2010 adapting the law of contracts relating to public procurement concluded by the State and its public establishments in New Caledonia, French Polynesia and in the Wallis and Futuna Islands indicates that the law of 1975 is applicable by order of the senior administrator in the Wallis and Futuna Islands. Finally, this law is also applicable to the Overseas collectivities of Saint Barthélemy and Saint Martin.
Concerning the international statute of the law on subcontracting, two judgments of the court of cassation confirmed that, as regards the construction of a building in France, the protective provisions of the subcontractor contained in the law of 31 December 1975 constitute a police law (CC °, ch. mixte, November 30, 2007 and CC ° 3th civ., January 30, 2008), whether it is to protect a French subcontractor from his German entrepreneur, by giving him the benefit of the direct action provided for by French law, while German law, which was that of the subcontract, does not provide for it (first kind), or to recognize a German subcontractor, facing a French client, the same benefit, while the subcontract is also subject to German law (second kind).
1.2.2. Prohibition of total subcontracting
Subcontracting can only relate to "Part of the contract concluded with the client" (cf. article 1 of the law of 1975 modified by law n ° 2001-1168 of December 11, 2001). The holder can only subcontract the execution of "Certain parts of its market" (cf. article 112, al. 1, of the Code of public markets, CMP).
Law n ° 2001-1168 of December 11, 2001, known as MURCEF law, established the principle of the prohibition of total subcontracting, thus harmonizing the law of 1975 and the circular of October 7, 1976 mentioned above, which indicated that, if the Code of public markets confirms the right recognized to the holder to subcontract certain parts of the market, " conversely, the holder is therefore required to perform part of the services ”.
However, the MURCEF law did not give a definition of total subcontracting, nor defined a minimum percentage of services to be carried out personally by the contractor. It is therefore up to the judge to determine, on a case-by-case basis, whether or not subcontracting is prohibited. Thus, in a judgment, however, prior to the aforementioned MURCEF law, the administrative judge considered that the occult recourse to total subcontracting authorizes the contracting authority to terminate the market at the expense of the main company (cf. CAA Bordeaux , 2th ch. December 15, 1997, n ° 94BX0 1637, SA Thermotique v / City of Nîmes).
Furthermore, for information, the Court of Justice of the European Community has also pronounced on a related subject in a judgment of March 18, 2004 (case n ° C-314/01, Siemens AG Osterreich, ARGE Telekom and Partner and Hauptverband des Österreichischen Sozialversicherungsträger) stating that a consultation regulation may prohibit, at the stage of execution of the contract, the use of subcontracting for the performance of substantial parts of the services.
1.2.3. Distinction compared to other contracts
- The subcontracting contract differs from sales, rental or deposit contracts because it includes an obligation to make and fulfill the object of the contract and not a simple obligation to give.
- The subcontract is different from the mandate contract, which has as its object the representation of a person by another who acts in the name and on behalf of the first. In addition, in the mandate contract, the agent is not subject to any of the contractual responsibilities of the constructions, while the subcontractor is a builder.
- Nor is the sub-contract comparable to an employment contract, which induces a relationship of subordination. However, if the subcontractor is required to perform a specific job, he freely decides how he will accomplish this mission.
In this same context, the judge sometimes rules on the classification of subcontracts likely to conceal illegal loans of labor, by checking, in the factual circumstances, the presence or absence of a link of subordination between the employer and the employee. Lending for-profit labor is a regulated activity and reserved only for temporary work companies. For-profit labor loan operations carried out outside temporary work constitute the offenses of "for-profit labor loan" or "bargaining".
- Finally, the subcontract must be distinguished from co-contracting, which is the operation by which two or more companies agree with each other with a view to bidding on a contract and performing it if they is awarded (cf. temporary grouping agreement for joint or several companies). It is a mode of contractual cooperation between companies of the same rank under which “ when the contract is awarded to a group of companies, the lots are awarded to named contractors, who have, each as far as it is concerned, the quality of the master's contracting partner of the work » (cf. CE December 7, 1987, Chamber of Agriculture of Deux Sèvres).
IMPLEMENTATION OF SUBCONTRACTING
2.1. BY THE HOLDER
Article 3 of the 1975 law states: " The entrepreneur who intends to execute a contract or a contract by using one or more subcontractors must, at the time of the conclusion of the contract and throughout duration of the contract or the contract, have each subcontractor accepted and accept the payment conditions of each subcontract by the contracting authority; the main contractor is required to communicate the subcontract or contracts to the contracting authority when the latter request.
When the subcontractor has not been accepted or the payment conditions agreed by the master under the conditions set out in the previous paragraph, the main contractor will nevertheless be required towards the subcontractor, but cannot invoke the subcontracting contract against the subcontractor dealing ".
In addition, article 112 of the Code of public markets clearly confirms that the holder of a public contract " may subcontract the execution of certain parts of its contract provided that it has obtained contracting authority acceptance of each subcontractor and approval of its payment conditions ".
2.1.1. Presentation of the subcontractor
The client can accept the subcontractor and accept his payment conditions only if the contractor formally requests it.
Under section 5 of the 1975 law, "The main contractor must, when submitting a tender, indicate to the contracting authority the nature and the amount of each of the services which he intends to subcontract, as well as the subcontractors he plans to use. During the performance of the contract, the main contractor may call on new subcontractors, on condition that they have previously declared them to the contracting authority ”.
Thus, the administrative judge clarified that " no provision, either of the law of 1975 (...) or of the Code of public markets does not confer on the contracting authority, to make up for the shortcomings of its contractor, the power to declare acceptance of the subcontractor in the absence of a request from the main contractor "(Cf. CE, April 3, 1991, Intercommunal Sanitation Syndicate of the Autrans-Meaudre Plateau).
The same rule applies in the event that the subcontractor directly submits a request for acceptance to the client for the purpose of remedying the negligence or ill will of the main contractor (cf. CE, 1st October 1990, SARL Multipose).
Article 114 of the public markets defines the three periods during which the contractor may present the subcontractor: at the time of the submission of the offer or the proposal (article 114.1 °), after the submission of the offer (article 114.2 °), or subsequently at market notification (article 114.3 °).
The candidate (or the holder, if the declaration of subcontracting occurs during the execution of the contract) must indicate to the contracting authority the nature of the services subcontracted, the name, reason or company name and address of the proposed subcontractor , the maximum amount of the sums to be paid by direct payment to the subcontractor, the methods of price variation if applicable (the subcontractor cannot automatically benefit from the provisions of the contract relating to price variations) and the professional and financial capacities of the subcontractor. The concept of "maximum amount" is defined here excluding the impact of a price change, update or revision.
To this declaration must be added a declaration by the subcontractor stating that he is not subject to a ban on access to public markets (article 114.1 ° of the CMP).
In the event that the request is made after the submission of the offer, the holder also establishes that no assignment (or pledge) of receivables precludes direct payment from the subcontractor, by producing either the single copy or the market transfer certificate that was issued to him, that is, a certificate or release from the beneficiary of the assignment or pledge of receivables (article 114.2 ° of the CMP).
In the event that the request is made during the execution of the contract, the holder must also request the modification of the single copy or of the transfer certificate, in order to reduce his copy to the only part of the services actually performed by him and to allow the establishment of a single copy or a transferability certificate for the benefit of the subcontractor for the part that it performs (article 114.3 ° of the CMP).
This request can be drawn up using the model of special subcontracting act “DC13”, which is only an indication and has no binding character.
Regarding communication of the subcontract by the owner to the contracting authority, article 3 of the law of 31 December 1975 as amended specifies that " the main contractor is required to communicate the subcontract or contracts to the contracting authority when the latter so requests ”. It is therefore a simple option left to the discretion of the contracting authority.
In this regard, the aforementioned circular of October 7, 1976 indicates that the 1975 law " give to the person responsible for the market, a right of scrutiny over certain stipulations appearing in subcontracts. (...) Its essential purpose is to allow the person responsible for the contract to ensure that there is no manifestly unjustified gap between the conditions imposed by the public body contracting to the holder and those appearing in the subcontract. (...) It should be emphasized that these access requests, which need not be systematic, are fully justified when serious presumptions suggest that the licensees' statements relating to the terms of payment contained in the subcontracts are inaccurate ”.
It is recalled that the subcontracted does not form part of the supporting documents to be produced to the public accountant within the framework of the controls which fall to him.
Payments to the subcontractor benefiting from the right to direct payment are made under the conditions and limits resulting from the special act of subcontracting, because it is the only document which reflects the commitment of the contracting authority. The conditions set out in the subcontract govern the private relationship between the owner, main contractor and his subcontractor.
In the event that the accounting officer discovers an inconsistency between the subcontracting contract which would nevertheless be sent to him and the special subcontracting act, he should only take into account the provisions of the special subcontracting act. Thus, in the event that the accountant receives the subcontract or subcontract in support of the special act of subcontracting, he performs his checks and payments in the light of the only provisions indicated in the act special subcontracting. The possible taking into account of the elements contained in the subcontract or subcontracting is the responsibility of the contracting authority, which can, if it wishes, request communication at the time of the presentation of the subcontractor and integrate certain aspects into the special subcontracting act.
2.1.2. Penalty for failure to present the subcontractor
The contract holder remains fully bound towards his subcontractor not accepted by the terms of the subcontract and he must fulfill his contractual obligations, in particular financial towards him.
The absence of a special subcontracting act signed by both parties (the representative of the contracting authority and the contractor) is systematically opposed by the administrative judge to the irregular subcontractor. No acceptance and therefore no right to direct payment can intervene without declaration of subcontracting by the holder, main contractor. In the event of late declaration, the subcontractor is only entitled to payment for the services performed after its acceptance (cf. CAA Lyon July 7, 2004, Ste Périmeter c / department of Yonne). The subcontractor can in fact claim direct payment only for the services performed after its acceptance and approval of its payment conditions.
In addition, in matters of public works, article 126.96.36.199 of the CCAG Travaux expressly provides that " the use of subcontracting, without prior acceptance of the subcontractor and without prior approval of the payment conditions, exposes the entrepreneur to the application of the measures provided for in article 46.3 ”, namely the termination of the contract for fault of the holder.
The same solution applies in the event of communication by the holder to the contracting authority of erroneous information in support of the declaration of his subcontractor.
The same type of penalty is applied in the CCAGs applicable to service contracts, intellectual services contracts, as well as industrial markets, with the proviso that, for the latter, a penalty may be imposed on the holder who does not regularize the situation of his subcontractor within 15 days of receipt of a formal notice.
It should be noted that article 46 of the Code of public markets has strengthened the fight against hidden work. From now on when the amount of the contract is greater than 3000 euros, the contracting authority must require from its contracting partner, during the award of the contract and every 6 months thereafter, documents attesting to the regularity of his situation with regard to of the regulations on illegal work (cf. articles R. 8222-5 or R. 8222-7 of the Labor Code). These documents do not constitute supporting documents to be produced to the accountant (2).
(2) Concerning the responsibility of the contracting authority which is aware of the presence of the undeclared subcontractor without requesting its regularization from the contractor, see paragraph 3.1.5 on irregular subcontracting below.
2.1.3. Constitution of payment guarantees for the benefit of the subcontractor
Under the terms of article 14 of the law of 1975 modified, the payment of all sums due by the entrepreneur to the second or more sub-contractor are guaranteed on pain of nullity of the sub-contract (or sub-contract contracting). This guarantee can take two forms: either a personal and joint guarantee obtained by the contractor, principal, from a qualified establishment, or a delegation of payment to the contracting authority for the amount of services provided by the sub- dealing (see article 1275 of the Civil Code).
2.2. BY THE CONTRACTING AUTHORITY
In accordance with article 3 of the aforementioned 1975 law, the contracting authority must accept the subcontractor and agree to its terms of payment. These two parts constitute inseparable and compulsory formalities.
2.2.1. Goals and methods of acceptance and acceptance of payment terms
The purpose of acceptance is to protect the interests of the community by allowing the contracting authority to know the subcontractor to which the holder intends to entrust part of the performance of the contract and to refuse it, if necessary, if its intervention is likely to hinder good performance of the market.
It is also an opportunity to verify that the services which the holder plans to subcontract can actually be the subject of a subcontract.
The aforementioned 1976 circular, which has not been modified on this point, provides that acceptance, refusal or even, in exceptional cases, withdrawal of acceptance are discretionary acts which, although they must be founded in right, don't have to be motivated. This recognition of the contracting authority's discretionary power does not imply the absence of any judicial review.
Henceforth, taking into account the law n ° 79-587 of July 11, 1979 relating to the motivation of administrative acts and the circular of September 28, 1987 (OJ October 20, 1987), the owner must justify his decision.
The approval of payment conditions responds to a concern for the protection of subcontractors. It is, thanks to the possibility of being communicated to the subcontractor, a means for the contracting authority to ascertain whether the relationships between subcontractor and contractor are balanced. This approval should not lead the contracting authority to interfere in private law relations between the contractor and the subcontractor. Nor should it be used as an argument for renegotiating contractual stipulations. Its primary purpose is to allow the public purchaser to ensure that there is no manifestly unjustified difference between the conditions made by the contracting authority and those appearing in the subcontract.
These two elements are inseparable, acceptance alone is not enough. The Council of State considers, from settled case-law, that in the absence of the cumulative existence of acceptance of the subcontractor and approval of its payment terms, subcontracting is not validly established ( cf. CE, June 13, 1986, OPDHLM du Pas-de-Calais c / Sté Franki).
In the event that the request for subcontracting occurs at the time of submission of the offer, the notification implies acceptance and approval of the payment conditions (cf. article 114.1 ° of the CMP).
In the case where the request is presented after the submission of the offer or in the case where the subcontracting is presented during the execution of the contract, the acceptance and approval of the payment conditions are then noted by a special written act signed by the contracting authority and the holder (cf. article 114.2 ° and 114.3 ° of the CMP).
There is no text or jurisprudence requiring the subcontractor to sign the special act. " The special subcontracting act (...) is only signed by the contractor and the power adjudicator, not by the subcontractor. The signature of the latter only appears on the subcontract, private law contract governing its relations with the owner, principal » (cf. written response from the Ministry of the Economy, Finance and Industry published in the Senate official journal of December 14, 2006, page 3102 to parliamentary question no. 24784).
In a purely formal register, the DC13 special act model only provides for the signature of the candidate or the contract holder and that of the buyer's representative, to the exclusion of all others.
188.8.131.52. Details on the content of the special subcontracting act with regard to the subcontracting contract.
The special subcontracting act specifies the nature of the subcontracted services, the name, reason or corporate name and address of the subcontractor, the maximum amount of the amounts to be paid directly, the terms of their payment and , if applicable, the price variation methods as well as the professional and financial capacities of the subcontractor (cf. article 114.2 ° al. 4 of the CMP).
It follows that the special acts of subcontracting do not necessarily include all the details of the subcontract, which enter into the private law relationship between the contract holder and his subcontractor.
• Thus, it is not the responsibility of the public accountant to carry out, on behalf of the holder, holdbacks on payments to be made to the subcontractor, on the grounds that these deductions are included in the subcontract for the benefit of the holder. In addition, a contracting authority is not justified in making a retention of guarantee on the sums due to the subcontractor since article 113 of the Code of public markets clearly lays down the principle of the sole holder's responsibility for the performance of all the services provided for in the contract, including those provided by the subcontractor.
In this regard, the Directorate of Legal Affairs of the Economic and Financial Ministries emphasizes that “ in under the general principle of the relative effect of contracts and in the absence of regulatory provisions, it there can be no question of imposing on the subcontractor a retention of guarantee provided for in a contract to which it is not a party ” (cf. letter CCM n ° 98000373 dated 06/26/98).
Besides, "(...) article 101 [of the Code of public markets] provides for holdback only at the charge of the holder and is not mentioned in article 115 as applying to subcontractors. In Consequently, the client does not have to apply a holdback to the subcontractor. He does not have no longer to provide for late payment penalties for the subcontractor in the special subcontracting act " (cf. written response of December 14, 2006 above).
Finally, on the occasion of a written response to parliamentary question n ° 22541, published in the Official Journal of the Senate on May 10, 2007, it was indicated, in the event that the amount of work performed by the holder and the subcontractors does not allow the contracting authority to draw the financial guarantee, that " withdrawing the withholding guarantee from the amounts due to the subcontractor would not be in accordance with provisions of the public markets [...]. However, if payments are to be made subsequently for the benefit of the holder, the deposits do not constitute final payments, it is possible to apply to the holder, on the following deposit, in addition to the corresponding holdback to this deposit, that which could not be executed previously ”.
However, if the special act of subcontracting provides for the application of a withholding of guarantee on the subcontractor, the public accountant, who is not judge of the legality of the documents produced to him, should execute the provisions thus provided.
In the event that the holder performs less than 5% of the amount of the contract (or the percentage provided for in the contract for the retention of guarantee), whether this situation occurs at the beginning of the contract or during its execution, it is advisable to request a substitution of guarantee as soon as the mathematical impossibility of withdrawing the retention of guarantee on the holder is noted.
Public accountants must therefore draw the attention of contracting authorities to the prior checks to be carried out in this respect in the event of acceptance of a subcontractor and approval of its payment conditions.
If the contracting authority finds that the retention of guarantee cannot be entirely withdrawn from the holder, it is up to him to request a substitution by the production of a guarantee on first request or, if he accepts it, of a deposit personal and united.
On receipt of this substitution guarantee, the contracting authority immediately transmits a copy to the public accountant, asking him in writing to release the guarantee deposit already drawn.
Finally, in the event that the holder does not provide any substitution guarantee when this is necessary under the contract, it is therefore no longer possible to pay it and therefore to pay the subcontractor.
However, in the latter case, the public accountant may refer to a requisition from the contracting authority if he is not in any of the cases where the law prohibits it.
- In addition, penalties are deducted from the sums to be paid to the contractor, who is solely responsible vis-à-vis the contracting authority for the performance of the contract, even if delays are caused by the subcontractor. In the event that all the sums personally due to the holder have already been paid before the final establishment of late penalties, this circumstance does not preclude the payment of the subcontractor for the full amount due to him. It is then up to the contracting authority to issue a receipt against the holder to recover the penalties.
Concerning the terms of payment, the subcontractor cannot avail himself with the contracting authority of the contract which binds him to his main contractor (the holder), to which the contracting authority is not a party (cf. CE 17 December 1999, Lot-et-Garonne development company).
Likewise, the contracting authority may not oppose to the subcontractor the provisions of the initial contract, unless the special act expressly provides to make the methods of payment provided for by a CCAP enforceable against the subcontractor (cf. CE 28 December 1988, SA Prometal). Therefore, if the special subcontracting act provides for the application of penalties on the subcontractor, the public accountant, who is not judge of their legality, must execute the provisions thus provided.
- About the price changes, the amount of the sums to be paid to the subcontractor must be established in such a way that direct payment can take into account the financial conditions which are granted to it by the contractor, in particular those relating to updating and revision (cf. paragraph II.A.2 of the aforementioned 1976 circular). To do this and to be enforceable against the contracting authority, in addition to the fact that the sub-treaty must actually contain these elements, the corresponding clauses and their effect on the calculation of the amounts of the sub-treaty must have been brought to the attention of the administration in the application for approval or the special act (cf. CE, January 28, 1987, Municipality of Beynes v / Sté Lasserre et cie).
In the absence of an indication in the document validated by the contracting authority, the subcontractor cannot claim direct payment for these variations.
- The obligation to provide for a advance for the subcontractor is a function of the total amount and the duration of the contract and not the amount and the duration of execution of the sole part carried out by it. These are the market conditions that determine the obligation to provide an advance, whether the owner or the subcontractor. Thus, a subcontractor who only intervenes for 10,000 euros in the context of a contract of more than 50,000 euros and with a duration of more than two months is entitled to claim an advance whose basis sits on the part he realizes.
184.108.40.206. Details of the differentiated VAT rates
- Certain works and services are taxable at the VAT at reduced rate 5.5%. The tax regulations stipulate that this rate is only applicable to operations invoiced by the main company to its client, but does not apply to those invoiced by the subcontractor to the contract holder, these latter falling under the normal rate (cf. Official Tax Bulletin 3 C-7-06 No. 202 of December 8, 2006 relating to work on premises used for residential purposes for more than two years, published in Instruction No. 07-030 MO of June 19, 2007).
Thus, the subcontractor is paid by the contracting authority for the total amount of his services, that is to say for the amount invoiced to the contract holder, therefore with the application of a VAT at the rate of 19.6 %; then the sum thus paid to the subcontractor is deducted from the sums due to the contract holder on the basis of a determined price with the application of VAT at the rate of 5.5 %. This difference in rate applicable to the service depending on whether it is performed by the contractor or the subcontractor could have the mechanical effect of increasing the initial amount of the contract. However, the sums which the contracting authority is required to pay to the subcontractor may not exceed the amount of the contract concluded with the contractor.
- The Directorate of Legal Affairs of the economic and financial ministries, asked about this problem and its consequences, provided the following response: To the extent that power adjudicator is necessarily informed of the "maximum amount of sums to be paid per payment direct to subcontractor ",[...] he is normally able to verify for himself whether acceptance of the subcontractor would cause the market price to be exceeded. [...] signing by the authorities adjudicator of the special act provided for in 2 ° of article 114 of the CMP cannot be considered as acceptance of the possible increase in the market price mechanically resulting from the payment of services.
The contracting authority will reduce, to the extent of the excess VAT it has paid to the subcontractor, the sums due to the holder after final account. In the event that the final statement reveals a overpayment by the holder, the administration will be justified in noting the overpayment and in issuing a perception against it " (See CAB note n ° 50 1 of March 7, 2008).
Furthermore, it also clarified that the contracting authority cannot refuse subcontracting on the sole grounds that the VAT rates applicable to the services provided by the contract are not identical: " if the holder may be refused authorization on grounds relating to the existence of a full contracting of the market, on payment terms which do not comply with the rules relating to payment of public markets, non-compliance by the subcontractor with market access conditions public or insufficient professional or financial capacity of the latter, the reason the application of differentiated VAT rates is not such as to be able to found a refusal of approval of the subcontractor ". (see note above).
- Following consultation with the Directorate of Tax Legislation (DLF) regarding the direct payment of subcontractors whose remuneration includes a value added tax (VAT) rate different from that paid to the public contract holder, two important details are made: the first relates to the differentiated rate of VAT, the second relates to the exemption from VAT from which the subcontractor can benefit.
1 °) When the collectivity proceeds to direct payment of the subcontractor which it duly accepted, in accordance with article 115 of the Code of public markets3 and to article 6 of the law n ° 75-1334 modified of December 31, 1975 relating to subcontracting4, it must be regarded, for the purposes of VAT, as paying the amount of the services subcontracted in the name and on behalf of the contractor.
Indeed, the direct payment mechanism does not modify the nature of the legal links existing between the contractor and its subcontractor, the contractor remains solely responsible, vis-à-vis the contracting authority, for the performance of all the services subject to the contract, including those entrusted to the subcontractor.
Also, the carrying out of the operations by the subcontractor entails the issue of an invoice from the subcontractor to the contract holder, and, concomitantly, a request for payment of the same amount addressed to the contracting authority with the copy of the invoice addressed to the contractor.
This certificate, which does not constitute an invoice, makes it possible to inform the contracting authority of the completion of the work by the subcontractor and of the amount due to it in application of article 115 of the Code of public markets.
When part of the work is subcontracted, the contracting authority may have to pay a higher amount than that for which it was committed to the contract. This is the case when the services provided by the subcontractor are subject to a standard rate of VAT while the holder benefits from a reduced rate. However, this element is necessarily known to the contracting authority at the time of acceptance of the subcontractor.
Consequently, when, as a result of direct payment, the contracting authority is required to pay an amount greater than that which is provided for by the contract, it must be able to demand the repayment of the excess amount to the contract holder for the account from which he paid the claim held by the subcontractor.
However, the provisions of the preceding paragraph do not apply when the amount of the subcontracting contract is below a threshold which, for all the contracts provided for in this title, is fixed at 600 euros; this threshold can be raised by decree in the Council of State according to variations in economic circumstances. Below this threshold, the provisions of title III of this law are applicable.
2 °) As regards secondly the situation in which the subcontractor benefits from an exemption which is not applicable to the contractor (in particular because of the exemption provided for in article 293 B (5) of the General Tax Code), the direct payment made by the client is necessarily without VAT.
However, the contractor must invoice the contracting authority for VAT on all the services covered by the contract, including the share entrusted to the subcontractor.
(3) Article 115.1 ° CMP: When the amount of the subcontracting is equal to or greater than 600 euros including tax, the subcontractor, which has been accepted and whose payment terms have been approved by the contracting authority, is paid directly, for the part of the contract which he ensures.
(4) Article 6 of Law No. 75-13 34 as amended of December 31, 1975: The direct subcontractor of the contractor who has been accepted and whose terms of payment have been approved by the contracting authority, is paid directly by him for the part of the contract which he ensures execution.
(5) Article 293 B, I of the CGI: “For their deliveries of goods and their provision of services, taxable persons established in France, excluding taxpayers who exercise an occult activity within the meaning of the third paragraph of article L 169 of the book of tax procedures, benefit from a deductible which exempts them from the payment of value added tax, when they have not realized:
1 ° A turnover higher than:
€ 81,500 in the previous calendar year;
Or € 89,600 in the previous calendar year, when the turnover for the penultimate year did not exceed the amount mentioned in a;
2 ° And a turnover relating to services, excluding sales to be consumed on site and accommodation services, greater than:
€ 32,600 in the previous calendar year;
Or € 34,600 the previous calendar year, when the penultimate year it did not exceed the amount mentioned in a. "
220.127.116.11. Details on the tacit acceptance of subcontractors
Article 114.4 ° of the Code of public markets provides that silence for 21 days from receipt of the documents mentioned in 2 and 3 implies acceptance of the subcontractor and approval of its payment conditions.
It constitutes a means of informing the contractor as to the action taken by the contracting authority on his declaration of subcontracting.
In addition, the list of supporting documents for local public expenditure referred to in Article D. 16 17-9 of the General Code of Local Authorities and appearing in Annex I to this code provides for the production of the market, endorsement, special act or any document written signed by the authority responsible for awarding the contract and by the holder thereof specifying the nature of the services subcontracted, the name, reason or company name and address of the subcontractor, the amount of the services subcontracted and the terms of payment provided for each subcontract.
This procedure formalizes the decision of the contracting authority, thus enabling the public accountant to carry out the controls incumbent upon him in connection with the payment of public expenditure.
In this regard, the formalization of tacit acceptance may take the form of an administrative certificate supported by the declaration of subcontracting drawn up by the holder and stating the nature of the services subcontracted, the name, the reason or the company name and the address of the subcontractor, the amount of services subcontracted as well as the payment conditions. This administrative certificate must indicate the date on which the tacit agreement was reached (expiration of the period of 21 days provided for in article 114-4 °).
2.2.2. Notification of acceptance and approval to the subcontractor
A copy of the original contract or, where applicable, of the special act provided for in article 114, bearing the mention of single copy or a transfer certificate provided for in article 106 of the Code of public markets is given to each subcontractor benefiting from direct payment (cf. article 117 al. 2 of the CMP). This document and it alone defines and approves the payment conditions of the subcontractor.
The consequence of the acceptance and approval of the subcontractor's payment terms is direct payment for the part of the contract which it ensures execution as soon as this amount is greater than 600 euros including tax. (cf. article 6, al.1 of the law of 1975 and article 115.1 ° of the CMP).
The right to direct payment was established to protect the subcontractor from a possible default by the holder. This provision is of public order, any renunciation of the subcontractor for the benefit of direct payment is deemed unwritten (cf. article 7 of the aforementioned law).
Thus, the Council of State, in a judgment "Commune de Chalabre" of October 17, 2003, indicated that the latter cannot be regarded as having been validly discharged from its debts by the payment made in the hands of the entrepreneur principal since the special act gave the right to direct payment by the municipality for the work entrusted to the subcontractor.
The attention of public accountants is drawn to the existence of special information appearing in the old version of the model special act of subcontracting (CD 13) indicating the following elements:
- in some cases, the box indicating that the subcontractor is not entitled to direct payment is checked, although he personally executes more than 600 euros including tax ; faced with such a situation, in the event that the holder requests reimbursement of the sums he has paid to the subcontractor in violation of the regulatory provisions, the sums mandated for his benefit would be greater than the part that he actually executed;
- in other cases where the same box is checked while the subcontractor still personally makes more than 600 euros including tax, a specific mention is added, stating, for example, "an express request for payment by the general contractor And signifying that the subcontractor will be paid by the contractor.
These situations, abnormal with regard to the internal legality of the acts, cannot, however, justify a suspension of payment by the public accountant, who is not responsible for the control of legality. In such cases, the accountant will be entitled to honor the mandate presented. At the same time, he may possibly exercise his duty of alert as described in Instruction No. 10-020-M0 of August 6, 2010.
In any event, the case law seems to admit that the payment of the subcontractor by the contractor extinguishes the claim on the client. (cf. in this regard, CE SA Jean Michel, which specifies that, from the moment when the subcontractor receives from the contracting authority or the holder payment for the part of the contract which he has executed, the other claims likely to be claimed from the contracting authority in the context of direct payment must be limited to those which have not been extinguished by the first payment).
The threshold of 600 euros including tax is assessed on the basis of the information in the contract, the endorsement or the special subcontracting act and is calculated taking into account:
- for contracts with conditional tranches, the amount of services entrusted to each subcontractor under the firm or firm tranche;
- for contracts with purchase orders, the minimum amount of services entrusted to the subcontractor. The contracting authority pays the subcontractor in two ways:
- by deducting these sums from the amount of the main contract, which constitutes an absolute limit which is only revalued by amendment;
- by staying within the limits of the amount of subcontracted services fixed by the market or the special subcontracting act.
It is recalled that the subcontractor can only claim direct payment for the services performed after its acceptance and approval of its payment conditions (cf. CE, November 14, 1984, OPHLM of Paris c / Entreprise Olivo).
Finally, it should be noted that the termination of the subcontract cancels the approval and acceptance of the subcontractor only for the subsequent period. The subcontractor is entitled to direct payment for services provided before termination (cf. CE, October 11, 1999, Assistance Publique - Hôpitaux de Paris).
2.2.3. Modifications to outsourced services
These modifications may notably occur when there is a change in the distribution of services between the contractor and the subcontractor (s) or between the subcontractors themselves in the event of additional work or unforeseen constraints.
- About the additional works, two cases may arise: the subcontractor performs them with or without a service order.
In the event that the subcontractor has carried out this work on the service order of the main contractor, it is up to the latter to have the situation regularized with the contracting authority by means of an amendment or a special amending act, in order to obtain direct payment. Even if the contractor, main contractor, ordered these additional works without referring to the client, the fact remains that these works must be the subject of an amendment to the subcontract and must be declared to the client for modification of the special subcontracting act, thus allowing direct payment to the subcontractor.
In any event, it is obviously not advisable to proceed by regularization a posteriori taking into account the difficulties of management of single copies or existing transferability certificates and the risks of conflicts between possible transfers by the holder or a sub- given contractor and the right of the subcontractor who actually performed the services concerned.
In the absence of a service order, the subcontractor may, however, obtain payment for it, provided that it proves that this work was essential for the performance of the main services (cf. CE, February 13, 1987, Sté Ponticelli frères).
- In a particular context, the accepted subcontractor whose payment conditions have been agreed is entitled to direct payment of the expenses resulting for him from Unforeseen Subjects who upset the general market economy (cf. CE, June 24, 2002, Seine Maritime department).
- Concerning the particular and frequent case of change in distribution between the contractor and the subcontractor (s), during the execution of the contract, without modification of the overall volume of works, or the amount of the contract, the public markets (article 114, last paragraph of 3 °) specifies: Any change in the distribution of services between the contract holder and the paid subcontractors directly or between the subcontractors themselves requires [...] modification of the single item or of the transferability certificate or, where applicable, the production of a certificate or release from the transferee (s) [...] ". Otherwise, the contracting authority is not deemed to have accepted the modification.
In this regard, the judge of accounts retains the responsibility of the accountant who pays the subcontractor for an amount greater than the amount indicated in the special act of subcontracting, even though the total amount of the contract is not exceeded (cf. CRC de Rhône-Alpes, June 3, 2003). The judge considers, in this case, that " the market only authorized subcontracting up to 195 690 F (29 834.75 €), which does not not allow the accountant, for the outsourced service, [...] to make payments beyond this sum, regardless of the total amount of payments made under the contract at profit of the main holder ”.
The Directorate of Legal Affairs of the Economic and Financial Ministries specifies that, in this case, nothing prevents the contracting authority from regularizing the situation a posteriori (CAB note n ° 507 of May 14, 2007). Indeed, under the aforementioned article 3 of the law on modified subcontracting, " the entrepreneur principal is required to communicate the subcontract (s) to the contracting authority when this one requests it " Thus, an amicable adjustment is always possible, in the form of a special amending act, especially since the amount of the contract is not increased and the subcontractor has already been accepted for the rest of the works.
However, any subsequent adjustment is not without risks. In fact, it hinders the correct management of single copies or existing transferability certificates and may, consequently, induce risks of conflicts between possible transfers made by the holder or a given subcontractor and the law of the subcontractor. dealing with who actually performed the services concerned.
Of course, it is recalled that the public accountant, as far as he is concerned, must hold the supporting document at the time when he makes the payment.
3.1. REGULAR SUBCONTRACTING
3.1.1. Conditions for implementing direct payment
Provided by title II of the law of 1975, the rule of direct payment is implemented, mainly, by article 115 of the Code of public markets. Thus, article 6 of the aforementioned law states: The subcontractor direct from the contract holder who has been accepted and whose payment terms have been approved by the client, is paid directly by him for the share of the contract which he ensures execution. However, the provisions of the preceding paragraph do not apply when the amount of the subcontracting contract is below a threshold which (...) is fixed at 600 euros (...). This payment is compulsory even if the main contractor is in a state of liquidation of the goods, legal settlement or provisional suspension of proceedings ”.
Article 115 of the public markets specifies that this amount includes all taxes. However, in the event of an amount below this threshold, the subcontractor may claim direct action against the contracting authority as provided for in Title III of the law on subcontracting "On action direct ”.
The direct payment and direct action regimes are mutually exclusive (cf. CE, March 17, 1982, Sté Périgourdine waterproofing and construction). Consequently, a subcontractor who should have benefited from direct payment, because of the amount of the part which he performs in a market, but who cannot in fact claim to do so, for example for failure to agree to his conditions payment by the client, can not exercise direct action.
Only the first-tier subcontractor can benefit from direct payment, second-tier and subsequent subcontractors cannot avail themselves of it. However, in order to guarantee their payment, the first-tier subcontractor must obligatorily provide second-tier subcontractors with either a personal and joint guarantee, or a delegation of payment under the terms of the article. 1275 of the Civil Code; similarly, the payment of subcontractors of rank higher than 2 is guaranteed by the originator via a personal and joint guarantee or a delegation of payment (cf. articles 6 and 14 of the law of 1975 modified).
In the payment delegation procedure, a person called "delegate" (contracting authority) undertakes on the instruction of another person called "delegator" (first-tier subcontractor) to pay a third person called "delegate" ( second-tier subcontractor). This commitment creates a new debt between the delegate and the delegate. Like any contractual agreement, the delegation of payment must be signed by all the parties designated in the deed. In the absence of a signature, the consent of the parties cannot be considered as established and the delegation of payment then remains inapplicable.
It is emphasized that the delegation of payment mechanism can be used in the context of a public contract, in other circumstances (for example, delegation for the benefit of a third party to the market).
The attention of public accountants is drawn to the risk that such a delegation may present for a "delegated" contracting authority in the context of the public contract it has signed. Once signed by the different parties, the delegation constitutes a real unconditional commitment to pay the delegatee, without the exceptions arising from contractual links between the delegate and the delegatee being able to be opposed to the delegatee. Thus, in the event that the delegatee does not fulfill his obligations towards him, the delegate would nonetheless remain bound towards the delegatee, without being able to take advantage of this circumstance.
However, a delegation of payment may be validly accompanied by conditions, which avoids the risk mentioned above.
Articles 8 of the abovementioned 1975 law and 116 of the Code of public markets indicate the procedure to follow to pay a subcontractor. In this regard, it should be noted that the Code of public markets 2006 modified the subcontractor's direct payment procedure to allow it to be paid more quickly.
The subcontractor sends his request for payment, made out in the name of the contracting authority, to the holder, either by registered letter with acknowledgment of receipt, or by deposit against receipt. This request must be devoid of any ambiguity and not consist, for example, in a simple transmission to the client, for information, of the copy of the formal notice given to the main company to transmit the work situation that 'he sent it to him (cf. CE, December 10, 2003, Ets Cabrol Frères).
Then the holder, as responsible for all of the services, examines the request in order to determine whether it corresponds to the services actually performed. He has 15 days from the signature of the acknowledgment of receipt or the receipt to give his agreement or notify a refusal, on the one hand, to the subcontractor, on the other hand, to the contracting authority or the person designated in the market. The entrepreneur agrees in the form of a certificate attached to the draft statement and indicating the amount to be deducted, for the benefit of his subcontractor, on those due to him for the part of the services performed by this subcontractor (cf. CAA Bordeaux, May 3, 2001, SARL Ateliers maritimes du bois). In case of refusal, the main contractor must justify it and serve it on the subcontractor by registered letter with acknowledgment of receipt.
The subcontractor also sends his payment request to the contracting authority or to the person designated in the contract, accompanied by copies of the invoices and the acknowledgment of receipt or the receipt certifying that the holder has received the request. In this regard, it is important to distinguish between the request for payment and the invoices themselves. The request for payment must be worded, as indicated in article 116 of the Code of public markets, on behalf of the contracting authority. Invoices are issued by the subcontractor on behalf of the holder. In any case, the subcontractor is not entitled to issue invoices on behalf of the contracting authority (see instruction no. 07-030-M0 of June 19, 2007 above).
The contracting authority shall immediately send the holder a copy of the invoices produced by the subcontractor.
This simultaneous approach can now result in a payment within 15 days after sending the request to the contract holder, even if the latter remains silent during this period, refuses the fold or does not claim it. Previously, the holder's silence obliged the subcontractor to refer his request to the public body, which put the holder on notice to prove to him, within a new period of 15 days, that he had opposed a reasoned refusal to his subcontractor.
Regarding the recipients of payment requests, no legislative or regulatory provision requires the subcontractor to send his payment request to the prime contractor on pain of inadmissibility of the request (cf. CE June 3, 2005, Sté Jacqmin; CE December 17, 2003, Laser Company).
3.1.2. Scope of direct payment
The client cannot pay the subcontractor beyond what is stipulated in the contract, that is to say, he cannot exceed the amount of the commitment made to the contractor.
The aforementioned 1976 circular limited the direct payment of the subcontractor to only the sums indicated in the contract, the endorsement or the special subcontracting act, to the exclusion of any supplement for additional work, or even of the application a price variation formula.
This particularly severe position for the subcontractor was relaxed by the circular of January 31, 1983, which recognizes the right to the application of a price variation clause, but also the modification of the share of the market entrusted to the subcontractor. dealing with. However, the subcontractor can only benefit from a price variation clause if it is formally included in the contract, the endorsement or the special subcontracting act. Otherwise, he cannot avail himself of it. (cf. CE, January 28, 1987, Municipality of Beynes cited above).
The subcontractor is also recognized the right to payment for additional work, provided that this work is of an essential nature (cf. CE, February 13, 1987, Ponticelli Frères Company cited above).
In addition, article 115 of the Code of public markets refers to Articles 86 to 100, thus offering the subcontractor the possibility of benefiting, like the holder, from an advance or price revisions, provided that they are expressly provided for in the special act of subcontracting .
In addition, the amounts due to the subcontractor are part of the deposits and the balance paid to the holder.
Concerning the advance to the subcontractor, article 115 2 ° al. 3 specifies: "The limits laid down in Article 87 are assessed by reference to the amount of services entrusted to the subcontractor as it appears in the market or in the special act mentioned in 2 ° of article 114 (...) ”.The right to advance is based on the amount and duration of the contract, while the basis of the advance is determined according to the share achieved by each.
Thus, a subcontractor can claim the payment of the advance as soon as the amount of the contract or the lot is more than 50,000 euros HT and that the period of execution of the contract or the lot is more than two months, which whatever the amount of services that this subcontractor performs. The right to advance as well as the base thereof, if applicable, must be determined for each lot taken separately since each lot constitutes a market.
The base of the advance to be paid to the subcontractor is based on his share.
The second condition for compulsory payment of the advance set out in article 87 relates to the duration of the contract, which must be more than two months. In any event, if this condition is fulfilled for the contractor, it is in fact for the subcontractor, even if its intervention time is shorter.
Furthermore, article 115 2 ° al. 6 indicates that, " if the holder who received the advance subcontracts part of the market after its notification, it reimburses the advance corresponding to the amount of subcontracted services, even in the case where the subcontractor cannot or does not wish to benefit in advance. The reimbursement by the holder is deducted from the sums due to him by the authorities adjudicator upon notification of the special act ”. This reimbursement results in the issuance of a receipt which is intended to be deducted from the installments to be paid to the holder. It is not intended that the approval of the subcontractor be subject to the immediate reimbursement of the overpayment, for example by delivery of a check by the incumbent company.
18.104.22.168. The privilege of 26 Pluviôse Year II, known as the Pluviôse privilege
The pluviôse privilege is a special movable privilege, instituted by article L. 143-6 of the Labor Code, which allows workers to whom wages are due, creditors to suppliers for the supply of materials and other objects used at the construction of the work, to have the privileged nature of the claims they hold against the public works contractor recognized.
The Court of Cassation extended the scope of Article L. 143-6 to direct subcontractors of the public works contractor, these subcontractors being assimilated to suppliers (Cass. Com, July 11, 1983, Sté Jardin).
Under article 110 of the Code of public markets, the only suppliers likely to benefit from this privilege are those who have been approved by the contracting authority under conditions set by decree (not published to date).
The procedures for exercising the privilege were specified by the Council of State in a notice delivered on July 9, 1996 No. 359055, following a referral to the Minister for the Budget and communicated by instruction No. 96-098-B1 September 19, 1996.
Pluviôse's privilege thus allows the subcontractor, even if not accepted, participating in the carrying out of public works, to have a remedy independent of direct payment to get paid from the contracting public person in the event of default of the main company (CE, June 3, 2005, Sté Jacqmin cited above).
3.1.3. Payment period
Article 4 of the decree n ° 2002-232 of February 21, 2002 modified relating to the implementation of the maximum period of payment in the public markets specifies that " the deadline for payment of the subcontractor paid directly by the public body is identical to that provided in the market for the payment of holder ”. Failure to pay on time also results in the payment of default interest to the benefit of the subcontractor.
3.1.4. Assignment or pledge of receivables
Under the provisions of article 117 of the Code of public markets, the subcontractor who has been accepted and whose terms of payment have been approved may assign or pledge, up to the amount of the services which are paid directly to him, all or part of his claim. To this end, a copy of the original contract or special act, or the transfer certificate provided for in article 106 is given to him.
3.1.5. Consequences of irregular subcontracting
The subcontractor who has not been accepted and whose payment terms have not been approved by the client cannot benefit from direct payment. This rule also applies to the subcontractor accepted but whose payment conditions have not been approved since the two conditions are cumulative (see above CE, June 13, 1983, OPDHLM Pas-de-Calais above).
In this case, to obtain payment for the services that he personally performed, the subcontractor always has the possibility of turning against his main contractor, contract holder who may experience financial difficulties, or even be subject to 'a collective procedure.
It is recalled that by virtue of the principle that the direct payment and direct action regimes are mutually exclusive, a subcontractor who should have benefited from direct payment, because of the amount of the share that it performs in a market, but which cannot in fact claim to do so, for example for failure to approve its terms of payment by the contracting authority, cannot exercise direct action (cf. paragraph 3.1 .1 CE, March 17, 1982, Sté Périgourdine cited above).
Under article 14-1 of the aforementioned 1975 law, "For building and works contracts public: - the client must, if he is aware of the presence on the site of a subcontractor not subject to the obligations defined in article 3 [subcontractor not declared] or in article 6 [subcontractor not benefiting from direct payment], as well as those defined in article 5 [sub-contractor not appointed], put the main contractor or subcontractor on notice to fulfill these obligations [...] ".
The High Court thus sanctions the owner who tolerates, in full knowledge of the facts, the presence of irregular subcontractors on a building site without imposing the regularization of this situation (cf. CE, May 28, 2001, n ° 205449, SA Bernard Travaux Polynesia).
The occult subcontractor, deprived of the protective provisions of the 1975 law, which he is not entitled to claim, can only consider an action against the client in the context of an action for liability for damage suffered.
RESPONSIBILITIES AND DISPUTES
4.1.1. Contracting authority towards the contractor and the subcontractor
If the client can be held liable on the contractual basis which binds him to the contractor, for non-performance or poor performance of the main contract (the public contract), this liability cannot be sought by the subcontractor since it does not 'has no contractual relationship with the client.
However, the client who would have known of an irregular subcontracting without giving notice to the contractor to regularize the situation could see his responsibility engaged. Thus, the Administrative Court of Appeal of Versailles indicated, in a decision of April 12, 2005, Center hospitalier d'Eaubonne “ that by refraining from causing such regularization, the Hospital Center Intercommunal d'Eaubonne-Monmerency has disregarded the aforementioned provisions of articles 3 and 6 of the law December 31, 1975; that this fault is at the origin of the damage suffered by the company La Métallerie Industrial which has not been paid by the Miravalle company for the works which it executed in application of the subcontracting contract ".
However, the responsibility of the Hospital Center was mitigated in this case by the faults committed, on the one hand, by the Miravalle company, which did not submit to its approval the company La Métallerie Industrielle, and, on the other hand, the company La Métallerie Industrielle, which could not usefully maintain that it thought it had been approved, when it was up to it to request the regularization of its situation.
4.1.2. From the contractor to the contracting authority and the subcontractor
Article 1st of the law of December 31, 1975 expressly specifies that the holder can appeal " under his responsibility »To subcontracting. He is therefore solely responsible to the client for the proper execution of the contract. Consequently, he responds, for example, to faults or faults committed by his subcontractor.
In any event, the holder cannot invoke the fault of his subcontractor or call him as a guarantee, in order to reduce his own responsibility (cf. CE, December 18, 1987, SARL Etrarec).
In addition, any failure by the main contractor to fulfill his obligations to his subcontractor is likely to engage his responsibility before the court. Thus, disputes between them must be brought before the court, despite the fact that their relationships are established for the execution of a public contract (T. Conflits, June 10, 2002, SARL Langlois Etudes Ingénieur c / SARL Guidicelli Architectes) .
4.1.3. From the subcontractor to the contracting authority and the main contractor
There can be no contractual disputes between the client and the subcontractor since they are not bound by a contract (CE, July 11, 1988, Chamber of Trades of Ille et Vilaine). Thus, in the absence of any contractual link and despite the faculty open to the subcontractor to directly receive the payment for supplies and works performed by him, the contracting authority cannot ask him to repair the faulty workmanship (CE, 2 February 1979, Société Roul).
Likewise, the absence of a contractual link between the contracting authority and the subcontractor prohibits the latter from being declared jointly liable with the main contractor for the disorders observed (CE, 27 January 1989, n ° 80975, Soprema Company).
Furthermore, the subcontractor is not bound by the ten-year guarantee to the contracting authority (CE, June 24, 1988, Municipality of Echirolles), even if he signed the final acceptance report for the works (CE, December 10, 1982, Minister of Education). Nor is it bound by the guarantee of perfect completion.
Concerning its relations with the holder, the bringing into play of its responsibility results from contractual links.
4.1.4. Special case of collective proceedings opened against the holder
The collective procedure opened against the contractor does not prevent the payment of the subcontractor, as specified in article 6 of the aforementioned law on subcontracting: The direct subcontractor of the contract holder who has been accepted and whose payment terms have been approved by the contracting authority, is paid directly by him for the share of the contract which he ensures. [...] This payment is obligatory even if the main contractor is in a state of liquidation of the goods, of legal settlement or provisional stay of proceedings ”.
This is why item 45122 of the aforementioned list of supporting documents for local public expenditure provides for production, " in the event of reorganization, compulsory liquidation or prevention of the holder or in the absence of a certificate from the holder or his representative, [of the'] certificate from the contracting authority, indicating the amount to be paid directly to the subcontractor. "
Jurisdiction depends on the nature of the relationship between the parties to the dispute, as confirmed by the Tribunal des Conflits, on June 2, 2008, in two cases (first case: n ° 3642, Société Aravis-Enrobage c / Municipality of Cusy and Entreprise Grosjean and second kind: n ° 3621, Underwriters of Lloyd's of London c / Municipality of Dainville).
Thus, with regard to relations between the contracting authority and the subcontractor, the Disputes Tribunal confirms the jurisdiction of the administrative court to hear, for example, the action for direct payment by the subcontractor against the client. This administrative competence is justified by the fact that the subcontractor contributes to the execution of the public works contract, which itself comes under administrative competence.
On the other hand, the action brought by the subcontractor against its main contractor falls within the jurisdiction of the courts, insofar as it is linked to the execution of the subcontract, which falls under private law. Thus the relationships between the owner and his subcontractors always fall within the jurisdiction of the judicial court.
APPENDIX N ° 1: LAW N ° 75-1334
OF 31 DECEMBER 1975 RELATING TO SUBCONTRACTING
Title I: General provisions
Edited by Law 2001-1168 2001-12-11 art. 6 1 ° JORF December 12, 2001
Within the meaning of this law, subcontracting is the operation by which an entrepreneur entrusts by a subcontract, and under his responsibility, to another person called subcontractor the execution of all or part of the contract of company or part of the public contract concluded with the contracting authority.
The provisions of this law are applicable to transport operations, the initial principal being assimilated to the contracting authority, and the contracting partner of the subcontractor carrier who performs the transport operations being assimilated to the main contractor.
The subcontractor is considered to be the main contractor with regard to its own subcontractors.
The entrepreneur who intends to perform a contract or a contract by using one or more subcontractors must, at the time of conclusion and throughout the duration of the contract or contract, have each subcontractor accepted and agree to the payment conditions of each subcontract by the contracting authority; the main contractor is required to communicate the subcontract (s) to the contracting authority when the latter so requests.
When the subcontractor has not been accepted or the payment conditions agreed by the client under the conditions set out in the previous paragraph, the main contractor will nevertheless be liable to the subcontractor but cannot invoke the subcontract against the subcontractor.
Title II: Direct payment.
This title applies to contracts awarded by the State, local authorities, establishments and public enterprises.
Edited by Law n ° 2001-1168 of December 11, 2001 - art. 7 JORF December 12, 2001
Without prejudice to the acceptance provided for in article 3, the main contractor must, during the tender, indicate to the contracting authority the nature and the amount of each of the services which he intends to subcontract, as well than the subcontractors he plans to use.
During the performance of the contract, the main contractor may call on new subcontractors, on condition that they have declared them beforehand to the contracting authority.
Edited by Ordinance 2000-916 2000-09-19 art. 5 V JORF September 22, 2000 effective January 1, 2002 Edited by Law n ° 2001-1168 of December 11, 2001 - art. 6 JORF December 12, 2001
The direct subcontractor of the contract holder who has been accepted and whose payment terms have been approved by the contracting authority, is paid directly by him for the share of the contract which he ensures execution.
However, the provisions of the preceding paragraph do not apply when the amount of the subcontracting contract is below a threshold which, for all the contracts provided for in this title, is fixed at 600 euros; this threshold can be raised by decree in Council of State according to the variations of the economic circumstances. Below this threshold, the provisions of title III of this law are applicable.
With regard to industrial contracts awarded by the Ministry of Defense, a different threshold may be set by decree in the Council of State.
This payment is mandatory even if the main contractor is in a state of liquidation of the goods, legal settlement or provisional suspension of proceedings.
The subcontractor who entrusts to another subcontractor the execution of part of the contract for which he is responsible is bound to issue him a bond or a delegation of payment under the conditions defined in article 14.
Any waiver of direct payment is deemed unwritten.
The main contractor has a period of fifteen days, counted from the receipt of the supporting documents used as a basis for direct payment, to accept them or to notify the subcontractor of his reasoned refusal of acceptance.
After this period, the main contractor is deemed to have accepted those of the supporting documents or parts of supporting documents which he has not expressly accepted or refused.
The notifications provided for in the first paragraph are sent by registered letter with acknowledgment of receipt.
The share of the contract which may be pledged by the main contractor is limited to that which he personally performs.
When the entrepreneur intends to subcontract part of the contract which has been pledged, the acceptance of subcontractors provided for in article 3 of this law is subject to a reduction in pledging up to the part which the entrepreneur proposes to subcontract.
This title applies:
To contracts on adjudication or on a call for tenders whose opinions or calls are launched more than three months after the publication of this law;
OTC markets whose signature is notified more than six months after the same publication.
Title III: Direct action
This title applies to all subcontracts which do not fall within the scope of Title II.
Edited by Law n ° 94-475 of June 10, 1994 - art. 5 JORF June 11, 1994 in force no later than October 1, 1994
The subcontractor has a direct action against the client if the main contractor does not pay, one month after being ordered to do so, the sums which are due under the subcontract; a copy of this formal notice is sent to the contracting authority.
Any waiver of direct action is deemed unwritten.
This direct action remains even if the main contractor is in a state of liquidation of the goods, legal settlement or provisional suspension of proceedings.
The provisions of the second paragraph of article 1799-1 of the civil code are applicable to the subcontractor who fulfills the conditions laid down in this article.
The direct action can only target the payment corresponding to the services provided for in the subcontracting contract and of which the client is actually the beneficiary.
The owner's obligations are limited to what he still owes to the main contractor on the date of receipt of the copy of the formal notice provided for in the previous article.
Edited by Law n ° 84-46 of January 24, 1984 - art. 63 JORF January 25, 1984
The main contractor may only assign or pledge the claims arising from the contract or the contract concluded with the contracting authority up to the amounts which are due to him for the work which he personally performs.
He may, however, assign or pledge all of these claims subject to obtaining, beforehand and in writing, the personal and joint and several guarantee referred to in article 14 of this law, vis-à-vis the subcontractors .
On pain of nullity of the subcontract, payments of all sums due by the entrepreneur to the subcontractor, in application of this subcontract, are guaranteed by a personal and joint guarantee obtained by the entrepreneur from a qualified establishment. , approved under conditions set by decree. However, the deposit will not need to be provided if the contractor delegates the owner to the subcontractor under the terms of article 1275 of the civil code, up to the amount of the services performed by the sub -treating.
As a transitional measure, the deposit may be obtained from an establishment appearing on the list fixed by the decree adopted in application of Law No. 71-584 of July 16, 1971 concerning holdbacks.
Edited by Law n ° 2005-845 of July 26, 2005 - art. 186 JORF July 27, 2005 effective January 1, 2006
For building and public works contracts:
- the client must, if he is aware of the presence on the site of a subcontractor who has not been the subject of the obligations defined in article 3 or in article 6, as well as those defined in article 5, put the main contractor or subcontractor on notice to fulfill these obligations. These provisions apply to public markets and private;
- if the subcontractor accepted, and whose payment conditions have been approved by the contracting authority under the conditions defined by decree of the Council of State, does not benefit from the delegation of payment, the contracting authority must require the prime contractor to demonstrate that they have provided the bond
The above provisions concerning the owner do not apply to the natural person constructing a dwelling to occupy it himself or to have it occupied by his spouse, his ascendants, his descendants or those of his spouse.
The provisions of the second paragraph also apply to the industrial subcontracting contract when the client knows of its existence, notwithstanding the absence of the subcontractor on the site. The provisions of the third paragraph also apply to the industrial subcontracting contract.
Title IV: Miscellaneous provisions.
Are void and of no effect, whatever the form, clauses, stipulations and arrangements which would have the effect of defeating the provisions of this law.
Edited by Law n ° 94-63 8 of July 25, 1994 - art. 33 JORF July 27, 1994
This law is applicable in the local authority of Mayotte. It applies to subcontracts concluded from the first day of the twelfth month following the publication of Law No. 94-638 of July 25, 1994, aimed at promoting employment, integration and economic activities in the overseas departments, Saint-Pierre-et-Miquelon and Mayotte.
For its application to the territorial collectivity of Mayotte, it is necessary to read in the first paragraph of article 14: "approved under the conditions fixed by decree of the representative of the Government in Mayotte", instead of "approved under fixed conditions by decree ".
Created by Law n ° 96-609 of July 5, 1996 - art. 7 JORF July 9, 1996
This law is applicable to the local authority of Saint-Pierre-et-Miquelon. It applies to subcontracts concluded from January 1, 1997.
For its application to the local authority of Saint-Pierre-et-Miquelon, it should read, in the first paragraph of article 14: "approved under the conditions fixed by order of the prefect" instead of: "approved in conditions fixed by decree ”.
Created by Law n ° 96-609 of July 5, 1996 - art. 7 JORF July 9, 1996
This law, with the exception of the last paragraph of article 12, is applicable in the territories of New Caledonia and French Polynesia subject to the following provisions:
- - It should be read, in the first paragraph of article 14:
" approved under the conditions set by order of the High Commissioner of the Republic ”instead of:“ approved under conditions fixed by decree ”.
- - It applies to subcontracts concluded from January 1, 1997. Article 15-4
Created by Ordinance No. 2010-137 of February 11, 2010 – art.1
This law is applicable, in the Wallis and Futuna Islands, to contracts concluded by the State and its public establishments subject to the following provisions:
In the first paragraph of article 14, the words "of the conditions fixed by decree" are replaced by the words "of the conditions fixed, in the Wallis and Futuna islands, by order of the senior administrator".
Decrees in the Council of State specify the conditions of application of this law.
By the President of the Republic:
VALÉRY GISCARD D'ESTAING
The Prime Minister: JACQUES CHIRAC
The Keeper of the Seals, Minister of Justice, JEAN LECANUET
JEAN-PIERRE FOURCADE Minister for the Economy and Finance YVON BOURGES Minister for Defense
ROBERT GALLEY Minister for Equipment
MICHEL D'ORNANO Minister for Industry and Research
VINCENT ANSQUER Minister for Trade and Handicrafts
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 markets, there cannot be, in an open call and a restricted call, negotiations with the candidates. The recourse to the adjustment envisaged in articles 59-II and 64-II of the code of the public contracts does not make it possible to start with the successful candidate a negotiation likely to call into question the conditions of the initial competition and of affect the principle of the intangibility of offers (CAA of Nantes, June 26, 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.