Cancellation of a public contract contrary to the regulations of the exercise of the right

on October 10, 2017 – Sébastien PALM

© DR – Decryption of the judgment rendered by the TA Rennes on June 15, 2017 by Master Sebastian Palm, expert in public law.

By judgment dated June 15, 2017, the administrative tribunal of Rennes cancels the contract entered into between a municipality and a consulting firm for project management support towards the achievement of a planning area collaborative (ZAC), considering that the benefits provided by the contract relate to the essential activity of legal consultation. Decryption by Master Sebastian, a Palm, a specialist in public law, including law of public order.

In this case, the national bar Council and the bar of Rennes, took part voluntarily in support of the appeal lodged by a law firm whose bid, ranked second, had been disposed of by the common for the benefit of the society council does not hold the quality of the lawyer.

To challenge this allocation, it was argued that the benefits provided by this contract were for the most part in the mission of legal consultancy as a principal aim to secure the community in the different steps of the process of advertising and the competition for the selection of a developer, and that the contracting company was not authorised to issue under the act n° 71-1130 of 31 December 1971 as amended.

The specifications required the successful tenderer, in particular,” to bring to the community on the legal support asserted, and [to] ensure, in particular its boards and parts produced a reliability legal without fault of the procedure “, which involved the drafting of personalized recommendations in the light of the existing regulations and the drafting of acts and legal documents necessary for the placing of such a market (specifications, regulations, documents of advertising project of deliberation, municipal, etc).

It was also pointed out that the lawyers are employees of the corporation were not authorised to provide legal services imposed by the market, the power purchaser may not be considered as the employer within the meaning of section 58 of the act of 31 December 1971 governing the legal activity of the company lawyers.

Receiving the intervention of the national bar Council and the College of lawyers, the administrative tribunal of Rennes cancels the contract at issue as concluded in disregard of the provisions of Title II of the act of 31 December 1971 and 4°) of II of article 30 of the public procurement code applicable to the cause.

In its judgment, the court considers, pursuant to the terms of an in-depth analysis of the specification, that “the contract at issue, if he was to part on the assessment of financial risk, included a part of legal custom casting to secure the procedure for the award of the contract,” and that the mission [under] for the essential activity of legal consultation custom could not be attributed to the company board with respect to its activity “.

This company was only allowed to engage in legal activities incidental to its main activity of management consulting, organization and financial matters in the conditions provided for by article 54 and 60 of the law of 31 December 1971 governing the exercise of the right professionals that are not regulated.

To reinforce their analysis, the judges also report that the duration of intervention of a lawyer appointed by the society board to ensure the execution of the contract at issue was superior to that of other specialists in finance and urban planning.

The fact of the solution is made, the Court has not had to rule on the plea raised by the CNB according to which the contract was vitiated by illegality as soon as the lawyer in charge of the services did not have the qualifications required by the texts for exercise as incidental to an activity of legal consultation.

Finally, the CNB and the Order of lawyers in Rennes are granted the sum of 750 euros to the title of the article L761-1 of the Code of administrative justice.

Me Sébastien Palm, lawyer is specialist in public law, member of the Committee on the Exercise of the Right of the National Council of the bar

See the decision of the TA Rennes made on June 15, 2017

Palm – Brault – Associated

The firm Palm – Brault – Associates is a law firm specialising in public law and in particular in the law of public contracts. His expertise in these fields of activities is recognised at national and international level.
It is made up of experienced lawyers and reagents, capable of handling the most complex files in a short time, providing solutions tailored to the needs of its customers.
Their expertise in any particular helps to ensure a secure legal decision-making and to provide support of very high quality in both advice and litigation services.
Master Sebastian Palm is the holder of the certificate of specialization in public law and member of the Committee on the Exercise of the Right of the national bar Council (CNB) in the capacity of expert in public procurement.

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