Connaitre ses droits

offers too good to be honest

Written by Administrator Tuesday, 26 July 2011 06:05

Buyers familiar with the problem of offers too good to be honest, that one hesitates to accept for fear of a faulty service. But refuse without a serious reason is the insurance end up in court. And when by this point, the Director of Financial Affairs explains that there is a penny into the coffers ... The matter might disconcert the most conscientious buyers.

The plug from the DAJ is right on these states of mind. It points out that neither the Code nor the European Directives do not define an abnormally low offer. Only a good knowledge of case law and the market in which we buy to avoid too many mistakes. But the qualification is always a case by case, after - and this is mandatory - giving the candidate an opportunity to be involved (Article 55 of the Procurement Code).

This qualification is difficult: a low price is not sufficient to exclude an offer. This can be explained by a different assessment of the working time needed by low-skilled or dedicated teams. It is not possible to automatically exclude an offer on the basis of a threshold upstream (eg 30% below valuation). In addition, the comparison with the average price offered by the other candidates is not guaranteed to be dealing with an ALT: the offeror may be the only one not taking part in a agreement. Finally, the buyer must ensure that the company "respects its social obligations," particularly in terms of remuneration (DAJ does not specify how ...).

All these are clues to initiate the procedure laid down in Article 55 of the Procurement Code. It must indeed always, in case of suspicion of an abnormally low offer, visit the company: the applicant must be able to assert their views and demonstrate the seriousness of his offer. Then, the buyer is satisfied and the offer becomes "normal" or not. In the latter case, the rejection decision must be substantiated.

While retaining an ALT is not in itself an illegal decision, the contracting authority shall, however, risks in doing so emphasizes Bercy: first it may be forced to conclude later amendments which increase the cost total market. It may then be a result of poor quality or even having to restart a process for contractor default. Regarding the black, the DAJ remember the new requirement established by the Act of May 17, 2011 to simplify the law: any written contract by a corporation under public law must now provide that a penalty may be imposed on companies that do fulfill their obligations in this area.

Finally, we will not neglect the legal risk to accept a tender is abnormally low. The Administrative Court of Cergy-Pontoise said, February 18, 2011, a "contracting authority had disregarded its obligations of competition and equal access to public procurement" by not allowing the candidate to explain ousted . So if we forget to ask for explanations, the decision to award the contract to another candidate is irregular. The company may seek compensation if it had a serious chance of winning the contract.

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