Council of State: non allocation of a public procurement agreement should be justified
jeu., 12 juin 2014 09:53:00 +0200
In ruling no. 375051, the Council of State reiterated that conclusion of an agreement should be duly justified. Award of an agreement is an obligation to be applied in all other instances. As a reminder, award of a public procurement agreement consists of breakdown of the contract into several batches, likely to be awarded separately and each to lead to the conclusion of an agreement. This obligation is governed by article 10 of the Public Procurement Code (CMP).
Indeed, this article makes provision that "Unless the object of the agreement does not allow for identification of distinct services, the awarding body shall conclude the contract in separate batches for which provision is made under section III of article 27. Consequently, it freely chooses the number of batches, taking due account of the technical characteristics of services requested, the structure of the economic structure in cause, and where applicable, applicable rules for certain professions".
Consequently, award of an agreement should be duly justified by the public power. Only several restricted hypotheses allow this: "The awarding body may however conclude an overall agreement, with or without identification of distinct services, if it believes that the devolution into separate batches would lead, in the particular instance, to restricting competition, or it would make it technically difficult or financially difficult to perform the services or that it is not able to assure the organisation, coordination or responsibility itself" (Article 10 (2). of the Public Procurement Code).