Following the promulgation of the “Climate and Resilience” law, the Government issued adecree n°2021-1111 of August 23, 2021 modifying the provisions of the public procurement code relating to framework agreements and public defense or security contracts.

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Taking note of the’judgment of the Court of Justice of the European Union from June 17, 2021 (CJEU, June 17, 2021,Simonsen & Well A/S, n°C-23/20), the regulatory power has put an end to the possibility until now offered to public buyers to passframework agreements without maximum.

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As a reminder, thearticle R.2162-4 of the Public Procurement Code provided until then that framework agreements could be concluded “without minimum or maximum ". Therefore, buyers were not required to indicate a maximum amount or a maximum quantity in the consultation documents. Furthermore, as the Council of State was able to judge recently, it was perfectlyfree to set such a maximum following a negotiation between candidates admitted to participate, even if such a setting was not provided forab initio :

 

“no rule or principle prevents it, within the framework of a negotiated procedure, whether or not it has informed the candidates in the consultation documents that the negotiation could lead it to set a maximum amount, from actually setting such a amount at end of procedure » (EC, June 12, 2019,Sté Prezioso Linjebygg, n°427397).

 

Now, since its entry into force onlast August 26, the same article R.2162-4 of the Public Procurement Code prescribes thatframework agreements cannot be concluded that "either with a minimum and a maximum in value or quantity ", "either with only a maximum in value or quantity ".

 

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1 – The judgment of the Court of Justice

 

This development was, as has been said, driven by a summer ruling by the Court of Justice, which onlyextend a solution already considered under the old directive of 2004 (CJEU, December 19, 2018,Autorità Garante della Concorrenza et del Mercato, n°C-216/17) to the reasoning of which we must return.

The dispute arose following the award by several Danish contracting authorities of a framework agreement without maximum with a single economic operator for the supply of equipment allowing tube feeding of patients. A competitor ousted from the procedure had challenged the procedure before the national courts, which referred several questions to the Court for a preliminary ruling.

 

In particular, the Court was asked to interpret the provisions of Directive 2014/24 relating to framework agreements. This in fact provides in its article 33 that “a framework agreement is an agreement concluded between one or more contracting authorities and one or more economic operators intended to establish the conditions governing the contracts to be awarded during a given period, in particular with regard to prices and,if applicable, the quantities envisaged ". The Court notes firstly that the use of the adverbial phrase "where applicable" such as the fact that Annex II of Implementing Regulation 2015/1986 establishing the standard forms for the publication of notices in the context of the public procurementmakes the mention “estimated total value” optionalfor framework agreements assume ainterpretation of these texts.

 

It is therefore in the light, in particular, of the principles of public procurement thatthe Court considers that “Atwith regard to the principles of equal treatment and transparency set out in Article 18(1) of Directive 2014/24 and thegeneral scheme of this directive, it cannot be accepted that the contracting authority refrains from indicating, in the contract notice, amaximum value of products to be supplied under a framework agreement ".

 

This is easily understood and the Court abounds in justifications. The prohibition on using a framework agreement without a maximum “concretes” the prohibition on using framework agreements in an abusive manner, it being understood that the absence of such precision at the time of launching the procedure may be of a nature hasdistort competitionat least for two reasons. First, indiscouraging certain economic operators to bid in view of the uncertainty induced. Then, by allowing the framework agreement to be used to a significantly greater extent than was initially envisaged, which in a classic public procurement would bequalified as a substantial modification. 

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2 – Practical consequences

 

The consequences of the Court’s judgment were not long in coming. Inorder of August 23, 2021, i.e. before the entry into force of the new provisions of the Public Procurement Code, the administrative court of Bordeaux canceled the procedure for awarding a batch of a framework agreement without maximum (while the framework agreement in its entirety provided for an estimated maximum value),yet passed before the judgment of the Court of Justice was rendered. This may seem harsh in terms of legal certainty, but it must be remembered that, in principle, the interpretation given by case law to normative provisions isretroactive. The court was therefore legitimately able to rely on a judgment of the Court of Justice subsequent to the facts, especially since the Kirchberg judges did not intend to limit in time the scope of the interpretation thus given to the directive. Please note, however, that this is only an order from an administrative court and others have taken the opposite position: it is appropriate not to give too much scope to these decisions and to wait for a decision to be taken. position of the Council of State.

 

However, it is recommended, for any appeal pending before the administrative courts relating to similar facts,to put forward such a means which will have a good chance of prospering.

 

Public buyers are strongly invited toindicate a maximum value or quantity in their call for competition with a view to concluding a framework agreement. The same goes for ongoing procedures, which it is recommended torelaunch in this direction, unless you take an inconsiderate litigation risk.

 

Concerning the framework agreements already awarded without a maximum and still subject to an appeal Tarn-et-Garonne with regard to the litigation deadlines, we can only move forward with caution, but a priori, such a defect could be covered... Again that…