The first French partnership contract, concluded for the construction and operation of a college Villemandeur (Loiret), was quashed by the Court Administrative Orleans. The partnership contract was awarded in July 2006 by Sogea Northwest, a subsidiary of Vinci Construction associated Auxifip (subsidiary of Crédit Agricole).
The National Union of the second work (SnSO) disputed mainly because of emergency that led the General Council for the use of CP. The court follows the conclusions of Ghislaine Borot, commissioner of the government, believing that the emergency conditions as interpreted strictly by the Constitutional Council were not satisfied in this case.
The urgency is well-known lawyers in public law. In litigation, the concept is a real pitfalls. Nevertheless, there is no precise definition but, paradoxically, demonstrate the urgency is required in certain procedures. The urgency in terms of PPP contract looks like this approach, the urgency as an element "essential but elusive.
The notion of urgency is present in the Public Contracts Code. But it occurs in a context vastly different from the PPP contract. In public procurement law, the urgency to justify the use of exceptional procedures. Two forms of emergency exists in the Code of mere contingency that allows to shorten the consultation time (3 days, rejoice. Sic) the urgency that allows people to use public procurement a negotiated procedure. In all cases, the emergency may not arise from acts attributable to the public person. The emergency procurement requires the existence of objective circumstances. In this sense, the definition of emergency declared by the Government Procurement Directives joined this design.
The urgency in the PPP contract differs from this view notwithstanding. Indeed, to use the PPP, it must demonstrate the complexity and / or urgency. PPP, the urgency is one of the substantive elements of using the PPP process. The urgency shown to lead to the application of a common law procedure (tender) in contrast to what is practiced in public markets (leading to the emergency waiver procedures such as market negotiated).
But how to define the urgency?
The State Council has given a practical approach in a decision dated October 29, 2004 regarding the use of PPP contract. The urgency is what "results objectively, in a sector or geographical area, the need to catch up on a particularly serious threat to the achievement of community facilities." Clearly, as pointed out by the MAPPP, urgency does not appear to preclude the failure of the public entity. The poor security, aging harmful books, compliance is difficult all of which could justify the urgency of using a PPP. The key point resides in the demonstration of the urgency and not encountered in a simple statement that "urgency".
Take the case of PPP (disputed) College Villemandeur. The National Union of the Second Work challenges the decision of the General Council of Loiret assign the construction of the college as a PPP. According to the release of SnSO, the condition of urgency was not satisfied. Preview:
"In this case, the Loiret chose the restricted tendering on the grounds of urgency. However, the guide of good practices of the partnership agreement drafted the support mission of the Ministry of Economy and Finance, says rightly that "the urgency raised by the Constitutional Council is not different from that traditionally accepted by the administrative courts. This is a urgent objective that should not result a priori because of the administration. "
Without debating the principled position of SnSO, one might question the sense of urgency developed in support of the application lodged by the union. In my opinion, the urgency of the PPP contract is not reflected and shaped by the administrative court within the definition of the limits of an interim suspended or an interim conservatory. The PPP contract is the condition of urgency urgent objective, and, again depending on the MAPPP, does not exclude the lack of public person. Retain a conception of emergency so restrictive that litigation would render meaningless the order of June 17, 2004. Back to
Villemandeur. Like many French towns, Villemandeur is facing a shortage of school facilities for its 5,600 inhabitants. In 2003, the General Council decided to build a new college Villemandeur and reduce the carrying capacity of the college who was himself Amilly subject to heavy restructuring. The College of Amilly (restructuring ...) had to accommodate students who would later in the future scolaris Villemandeur college. The new college was to be completed for the 2004 school year but ....
The work is long overdue. The restructuring of the College of Amilly makes college available for September 2005. As for the one Villemandeur, problems come and go. Firstly, problems of land. The City Council should propose Villemandeur land to the builder but it appears that the coveted land belong to private owners: the negotiation takes time. Then the bidding started on the etime of the supervisor give results exceeding 30% to 40% the amount estimated by Moe. The mayor of Villemandeur revives call for tenders on the basis of new estimates, but the result is not conclusive. Second shot missed. Accordingly, the termination of the prime contract work is delivered ....
Meanwhile, children of the municipality of Villemandeur "overload" the college Amilly. Et .. to operate the whole, the General Council is forced to work temporarily to accommodate the influx of college students.
The construction of the college Villemandeur is taken to zero. The General Council is turning to the PPP after screening assessment and in the context of "emergency" resulting from the elements outlined in these few lines.
Given these facts, we must consider that the General Council was faced with an urgent project objectively? In your opinion ...?
The Administrative Court of Orleans launched a true "stir" in full reform of CP ...
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