Order Of 17 June 2004 On Partnership Contracts
LexInter | November 20, 2006 | 0 Comments

Order Of 17 June 2004 On Partnership Contracts

Decrees, orders, circulars
General texts
Ministry of the Economy, Finance and Industry

Ordinance n ° 2004-559 of June 17, 2004 on

NOR partnership contracts : ECOX0400035R 


The President of the Republic,

On the report of the Prime Minister and the Minister of State, Minister of the Economy, Finance and Industry,

Having regard to the Constitution, in particular article 38;

Having regard to Directive n ° 2004/18 / CE of the European Parliament and of the Council of March 31, 2004 relating to the coordination of procedures for the award of public contracts for works, supplies and services;

Having regard to the penal code;

Having regard to the general code of local authorities;

Having regard to the public health code;

Having regard to the labor code;

Considering the code of administrative justice;

Considering the code of the domain of the State;

Having regard to the monetary and financial code;

Having regard to the general tax code;

Considering the law n ° 85-704 of July 12, 1985 modified relating to the public project management and its relationship with the private project management;

Considering the law n ° 2003-591 of July 2, 2003 empowering the Government to simplify the law, in particular its article 6;

The Council of State heard; Having

heard the Council of Ministers,

Orders:


TITLE I

PARTNERSHIP CONTRACTS OF THE STATE

AND ITS PUBLIC ESTABLISHMENTS

Article 1


Partnership contracts are administrative contracts by which the State or a public establishment of the State entrusts to a third party, for a period determined according to the amortization period of the investments or the financing methods adopted, a global mission. relating to the financing of intangible investments, works or equipment necessary for the public service, for the construction or transformation of works or equipment, as well as for their upkeep, maintenance, operation or management, and, where applicable if applicable, to other services contributing to the exercise, by the public body, of the public service mission for which it is responsible.

The contracting party of the public body ensures the control of

He may be entrusted with all or part of the design of the works.

The remuneration of the co-contracting party is subject to payment by the public body throughout the duration of the contract. It can be linked to performance objectives assigned to the co-contractor.

Article 2


Partnership contracts can only be concluded for the realization of projects for which an evaluation, which the public body carries out before the launch of the award procedure:

a) Shows or else that, given the complexity of the project, the a public person is not objectively in a position to define on its own and in advance the technical means that can meet its needs or to establish the financial or legal structure of the project, or that the project is of an urgent nature;

b) State with precision the reasons of an economic, financial, legal and administrative nature, which led it, after a comparative analysis, in particular in terms of overall cost, performance and risk sharing, of the various options, to retain the planned project and to decide to launch a procedure for signing a partnership contract. In an emergency, this presentation can be brief.

The assessment is carried out with the assistance of an expert body chosen from among those created by decree.

Article 3

The signing of a partnership contract is subject to the principles of freedom of access, equal treatment of applicants and objectivity of procedures.

It is preceded by an advertisement allowing the presentation of several competing offers under the conditions provided for by decree.

Article 4The following cannot tender for a partnership contract:

a) Persons who have been the subject, for less than five years, of a final conviction for one of the offenses provided for in articles 222-38, 222-40, 313 -1 to 313-3, 314-1 to 314-3, 324-1 to 324-6, 421-2-1, by the second paragraph of article 421-5, by article 433-1, by the second paragraph of article 434-9, by articles 435-2, 441-1 to 441-7, by the first and second paragraphs of article 441-8, by article 441-9 and by l article 450-1 of the penal code, as well as by the second paragraph of article L. 152-6 of the labor code and by article 1741 of the general tax code;

b) Persons who have been the subject, for less than five years, of a conviction entered in bulletin n ° 2 of the criminal record for the offenses mentioned in Articles L. 324-9, L. 324-10, L. 341-6, L. 125-1 and L. 125-3 of the labor code;

c) Persons in a state of judicial liquidation or admitted to judicial reorganization or who have been the subject of equivalent procedures governed by foreign law;

d) Persons who, on December 31 of the year preceding the year in which the consultation is launched, have not subscribed to the declarations incumbent on them in fiscal and social matters or have not paid taxes and contributions due on that date. The list of taxes and contributions in question is fixed under conditions provided for by decree.

The provisions of this article are applicable to legal persons who apply as well as to those who are members of a candidate group. 

Article 5


If, given the complexity of the project, the public body is objectively unable to define the technical means that can meet its needs or to establish the financial or legal package of the project, it indicates in the notice that it a dialogue phase will be used under the conditions provided for in I of article 7 of this ordinance.

If this is not the case, and only when the project is of an urgent nature, it indicates that the admitted candidates will submit an offer under the conditions provided for in II of article 7 of this ordinance.

Article 6

The period between the date of dispatch of the notice of call for competition and the deadline for receipt of applications is at least forty days. It is mentioned in the public call for competition.

The public body establishes the list of candidates admitted to participate in the dialogue defined in I of article 7 or in the procedure mentioned in II of the same article in application of the selection criteria of the candidates appearing in the notice of public call to the competition. The number of these candidates may not be less than three or five respectively, subject to a sufficient number of candidates who are not in any of the cases of exclusion mentioned in article 4 and who have professional, technical and financial capacities. appropriate. At the request of the interested party, the public person communicates the reasons for the rejection of an application.

Article 7

I. – On the basis of the functional program that it has established, the public body engages in a dialogue with each of the candidates, the purpose of which is to define the technical means and the legal and financial arrangement best able to respond to its needs.

The public person can discuss all aspects of the contract with the candidates.

Each candidate is heard under conditions of strict equality. The public body may not give certain candidates information likely to give them an advantage over others. It may not reveal to other candidates proposed solutions or confidential information communicated by a candidate in the context of the discussion without the latter’s consent.

The public person continues the discussions with the candidates until he is able to identify the solution (s), if necessary after having compared them, which are likely to meet his needs.

It may provide for the discussions to take place in successive phases at the end of which only the proposals that best meet the criteria set out in the public call for competition or in the consultation regulations are retained. The use of this possibility must have been indicated in the public call for competition or in the consultation regulations.

When it considers that the discussion has come to an end, the public body informs the candidates who participated in all phases of the consultation. It invites the candidates to submit their final offer on the basis of the solution (s) presented and specified during the dialogue within a period which may not be less than one month. It defines the conditions for performance of the contract, including those of its clauses which provide for an evolution, during the term of the contract, of the rights and obligations of the co-contractor, and, where applicable, specifies the criteria for awarding the contract defined. in the public call for competition or the consultation regulations. It strives to maintain real competition up to this stage.

These offers include all the elements necessary for the execution of the contract.

The public body may request clarifications, details or additions concerning the offers submitted by the candidates as well as the confirmation of certain of the commitments, in particular financial ones, which appear therein. However, these requests cannot have the effect of modifying the fundamental elements of the offer or the essential characteristics of the contract.

It can be foreseen that a bonus will be awarded to all applicants or to those whose offers have been ranked highest.

II. – The tendering procedure is defined by decree. 

Article 8


The contract is awarded to the candidate who presented the economically most advantageous offer, by applying the defined criteria, taking into account the conclusions of the evaluation study mentioned in article 2, in the notice of appeal. public competition or the consultation regulations and, where applicable, specified under the conditions provided for in article 7.

The award criteria are weighted. If the public person demonstrates that such a weighting is objectively impossible, they are ranked.

Among the award criteria, there is necessarily the overall cost of the offer, performance objectives defined according to the subject of the contract and the part of performance of the contract that the candidate has

“Small and medium-sized enterprises” are understood to mean companies whose workforce does not exceed 250 employees and whose turnover does not exceed on average over the last three years 40,000,000 euros. Small and medium-sized enterprises are not considered to be enterprises whose share capital is held for more than 33% by an enterprise which does not have the character of a small and medium-sized enterprise.

Other criteria, related to the subject of the contract, may be retained, in particular the technical merit and the innovative nature of the offer, the completion time of the works or equipment, their aesthetic or functional quality.

Article 9

As soon as it has chosen the winner of the contract, the public body informs the other candidates of the rejection of their offer. A period of at least ten days is respected between the date of notification of this information and the date of signature of the contract.

When it gives up continuing with the signing of the contract, the public body informs the candidates.

In response to a written request from an unsuccessful candidate, the public body indicates in writing within fifteen days the reasons for the rejection of its offer, the characteristics and the relative advantages of the chosen offer as well as the name of the successful tenderer. contract.

A partnership contract can only be signed by the State or a public establishment with a public accountant after the agreement of the Minister responsible for the economy or his representative, who assesses its consequences on public finances and the availability of credits.

The contract is notified to the successful tenderer before any start of execution.

Within thirty days of this notification, the public entity sends for publication an award notice in the Official Journal of the European Union. This award notice is drawn up in accordance with the model established by order of the Minister responsible for the economy.

Article 10


When the public body is informed of a project by a company or a group of companies and plans to follow it up by concluding a partnership contract, it conducts the award procedure under the conditions provided for in Articles 2 to 9 of this ordinance.

As long as he is not in any of the cases of exclusion mentioned in article 4 and his technical, professional and financial capacities are sufficient, the author of the project is admitted to participate in the procedures provided for in article 7. of this Ordinance.

Article 11

A partnership contract necessarily includes clauses relating to:

a) Its duration;

b) Under the conditions under which the sharing of risks between the public entity and its co-contracting party is established;

c) The performance objectives assigned to the co-contractor, in particular with regard to the quality of the provision of services, the quality of the works and equipment, the conditions under which they are made available to the public body, and, where applicable, their level of attendance;

d) The remuneration of the co-contractor, under the conditions in which are taken into account and distinguished, for its calculation, the investment, operating and financing costs and, where applicable, the revenues that the co-contractor may be authorized to earn. procure by operating the works or equipment to meet needs other than those of the public contracting authority, the reasons and terms for its variations during the term of the contract and the terms of payment, in particular the conditions under which, each year, the sums owed by the public body to its co-contracting party and those for which the latter is liable by way of penalties or sanctions are subject to compensation;

e) The obligations of the co-contractor aimed at guaranteeing compliance with the allocation of works and equipment to the public service for which the public contracting authority is responsible and compliance with the requirements of the public service;

f) The methods of control by the public body of the execution of the contract, in particular the respect of the performance objectives, as well as the conditions under which the co-contractor calls on other companies for the execution of the contract, and in particular of the conditions under which it respects its commitment to award part of the contract to small and medium-sized enterprises and craftsmen.

With regard to the subcontractors who are called upon for the construction of works and equipment, a clause obliges the holder of the partnership contract to post a deposit guaranteeing them payment as and when the work is carried out, within a maximum period of forty-five days from receipt thereof;

g) The sanctions and penalties applicable in the event of breach of its obligations, in particular in the event of non-compliance with performance objectives, on the part of the co-contractor;

h) Under the conditions under which it can be proceeded, by amendment or, in the absence of agreement, by a unilateral decision of the public body, to the modification of certain aspects of the contract or its termination, in particular to take into account the evolution the needs of the public body, technological innovations or modifications in the financing conditions obtained by the co-contractor;

i) The control exercised by the public body over the partial or total transfer of the contract;

j) Under the conditions under which, in the event of default by the co-contractor, the continuity of the public service is ensured, in particular when the contract is terminated;

k) The consequences of the termination, early or not, of the contract, in particular with regard to the ownership of works and equipment;

l) The methods of preventing and settling disputes and the conditions under which, if applicable, recourse to arbitration, with application of French law.

Article 12


When a partnership agreement entrusts to the other party all or part of the design of structures, the following provisions apply:

a) Among the conditions of execution of the contract used by the contracting public entity is the requirement to identify a team project management responsible for the design of structures and monitoring their implementation;

b) The tenders necessarily include, for buildings, an architectural project;

c) Among the criteria for awarding the contract is necessarily the overall quality of the works.

When the public body entrusts the co-contractor with only part of the design of the works, it may itself, by way of derogation from the definition of the basic mission appearing in the fourth paragraph of article 7 of the law of 12 July 1985 relating to public project management and its relationship with private project management, call on a project management team for the part of the design that it assumes.

Article 13

I. – When the contract entails occupation of the public domain, it is equivalent to authorization of occupation of this domain for its duration. The contract holder has, unless otherwise stipulated in this contract, real rights to the works and equipment that he carries out. These rights give it the prerogatives and obligations of the owner, under the conditions and within the limits defined by the clauses of the contract aimed at guaranteeing the integrity and use of the public domain.

II. – Article L. 34-7-1 of the State domain code is amended as follows:

In the first paragraph, after the words: “in article L. 34-3-1”, are added the words: “or carried out under partnership contracts”.
TITLE II
PARTNERSHIP CONTRACTS OF TERRITORIAL AUTHORITIES AND THEIR PUBLIC ESTABLISHMENTS 

Article 14

It is created in title I of book IV of the first part of the general code of local authorities a chapter IV entitled: “Partnership contracts”, as follows:
“Chapter IV
“Partnership contracts
“Art. L. 1414-1. – Partnership contracts are administrative contracts by which the public body entrusts to a third party, for a period determined according to the amortization period of the investments or the financing methods selected, a global mission relating to the financing of intangible investments , works or equipment necessary for the public service, for the construction or transformation of works or equipment, as well as for their upkeep, maintenance, operation or management, and, where applicable, for other services services contributing to the exercise, by the public body, of the public service mission for which it is responsible.

“The public entity’s co-contractor is in charge of the work to be carried out.

“He may be entrusted with all or part of the design of the structures.

“The remuneration of the co-contracting party is subject to payment by the public body throughout the duration of the contract. It can be linked to performance objectives assigned to the co-contractor.

“Art. L. 1414-2. – Partnership contracts can only be concluded for the realization of projects for which an evaluation, which the public body carries out before the launch of the procurement procedure:

“A) Shows either that, given the complexity of the project, the public body is not objectively in a position to define on its own and in advance the technical means that can meet its needs or to establish the financial package or the legal nature of the project, or that the project is of an urgent nature;

“B) State with precision the reasons of an economic, financial, legal and administrative nature, which led it, after a comparative analysis, in particular in terms of overall cost, performance and risk sharing, of the various options to be retained the planned project and to decide to launch a procedure for signing a partnership contract. In an emergency, this presentation can be brief.

“The above-mentioned assessment is presented to the deliberative assembly of the local authority or to the deliberative body of the public establishment, which decides on the principle of resorting to a partnership contract.

“Art. L. 1414-3. – The signing of a partnership contract is subject to the principles of freedom of access, equal treatment of applicants and objectivity of procedures.

“It is preceded by an advertisement allowing the presentation of several competing offers under the conditions provided for by decree.

“Art. L. 1414-4. – Cannot tender for a partnership contract:

“A) Persons who have been the subject, for less than five years, of a final conviction for one of the offenses provided for in Articles 222-38, 222-40, 313-1 to 313-3, 314 -1 to 314-3, 324-1 to 324-6, 421-2-1, by the second paragraph of article 421-5, by article 433-1, by the second paragraph of article 434 -9, by articles 435-2, 441-1 to 441-7, by the first and second paragraphs of article 441-8, by article 441-9 and by article 450-1 of the penal code , as well as by the second paragraph of article L. 152-6 of the labor code and by article 1741 of the general tax code;

“B) Persons who have been the subject, for less than five years, of a conviction entered in bulletin n ° 2 of the criminal record for the offenses mentioned in Articles L. 324-9, L. 324-10, L 341-6, L. 125-1 and L. 125-3 of the Labor Code;

“C) Persons in a state of judicial liquidation or admitted to judicial reorganization or who have been the subject of equivalent procedures governed by foreign law;

“D) Persons who, on December 31 of the year preceding the year in which the consultation is launched, have not subscribed to the declarations incumbent on them in fiscal and social matters or have not paid taxes and contributions due on that date. The list of taxes and contributions in question is fixed under conditions provided for by decree.

“The provisions of this article are applicable to legal persons who apply, as well as to those who are members of a candidate group.

“Art. L. 1414-5. – If, given the complexity of the project, the public body is objectively unable to define the technical means that can meet its needs or to establish the financial or legal package of the project, it indicates in the notice that a dialogue phase will be used under the conditions provided for in article L. 1414-7.

“If this is not the case, and only in the emergency situations mentioned in article L. 1414-2, it indicates that the admitted candidates will directly submit a final offer under the conditions provided for in article L. 1414-8.

“Art. L. 1414-6. – The period between the date of dispatch of the notice of call for competition and the deadline for receipt of applications is at least forty days. It is mentioned in the public call for competition.

“At the end of this period, a committee, composed in accordance with the provisions of article L. 1411-5, draws up the list of candidates admitted to participate in the dialogue defined in article L. 1414-7 or in the procedure described in Article L. 1414-8, in application of the selection criteria for candidates mentioned in the public invitation to tender notice. The number of these candidates may not be less than three or five respectively, subject to a sufficient number of candidates who are not in any of the cases of exclusion mentioned in article L. 1414-4 and who have professional capacities. , appropriate technical and financial. At the request of the interested party, the public person communicates the reasons for the rejection of an application.

“Art. L. 1414-7. – On the basis of the functional program that it has established, the public body engages in a dialogue with each of the candidates, the object of which is to define the technical means and the legal and financial arrangement best able to meet its needs.

“The public person can discuss all aspects of the contract with the candidates.

“Each candidate is heard under conditions of strict equality. The public body may not give certain candidates information likely to give them an advantage over others. It may not reveal to other candidates proposed solutions or confidential information communicated by a candidate in the context of the discussion without the latter’s consent.

“The public person continues the discussions with the candidates until he is able to identify the solution (s), if necessary after having compared them, which are likely to meet his needs.

“It can provide for the discussions to take place in successive phases at the end of which only the proposals that best meet the criteria set in the public call for competition or in the consultation regulations are retained. The use of this possibility must have been indicated in the public call for competition or in the consultation regulations.

“When it considers that the discussion has come to an end, the public body informs the candidates who participated in all phases of the consultation. It invites the candidates to submit their final offer on the basis of the solution (s) presented and specified during the dialogue within a period which may not be less than one month. It defines the conditions for performance of the contract, including those of its clauses which provide for an evolution, during the term of the contract, of the rights and obligations of the co-contractor, and, where applicable, specifies the criteria for awarding the contract defined. in the public call for competition or the consultation regulations. It strives to maintain real competition up to this stage.

“These offers include all the elements necessary for the execution of the contract.

“The public body may request clarifications, details or additions concerning the offers submitted by the candidates as well as the confirmation of some of the commitments, in particular financial ones, which appear therein. However, these requests cannot have the effect of modifying the fundamental elements of the offer or the essential characteristics of the contract.

“It can be expected that a bonus will be awarded to all applicants or to those whose offers have been ranked highest.

“Art. L. 1414-8. – I. – Applications are sent by any means making it possible to determine with certainty the date and time of their receipt and to guarantee confidentiality.

“II. – The opening of the bids is not public; candidates are not admitted. Only envelopes can be opened which have been received at the latest on the date and time limit which were announced in the notice of public call for competition. The public person opens the envelope relating to applications and records its content. In view of the information relating to the candidatures, it draws up the list of candidates authorized to submit an offer.

“III. – The public body sends, simultaneously and in writing, to all successful candidates a consultation letter inviting them to submit an offer.

“This consultation letter includes:

“A) The deadline for receipt of tenders, the address to which they are sent and an indication of the obligation to draw them up in French;

“B) The reference to the public call for competition;

“C) If applicable, the address of the service from which the specifications and additional documents can be requested and the deadline for submitting this request.

“The deadline for receiving offers may not be less than forty days from the sending of the consultation letter. In the event of urgency not resulting from the act of the public person, the deadline for reception of the offers can be reduced to fifteen days.

“When the tenders can only be submitted following a visit to the site of execution of the contract or after consultation on the spot of documents complementary to the specifications, the deadlines are extended accordingly.

“Any additional information on the specifications is communicated by the public body at the latest six days before the deadline set for the receipt of tenders.

“In the event of reduced deadlines due to urgency, this information shall be communicated at the latest four days before the deadline fixed for the receipt of tenders.

“Offers are sent by any means allowing the date and time of their receipt to be determined with certainty and confidentiality to be guaranteed.

“IV. – The opening session of the envelopes containing the offers is not public; candidates are not admitted. Only those envelopes can be opened which have been received at the latest by the deadline which was announced in the consultation letter.

“V. – There can be no negotiation with the candidates. The public body can only ask them to specify or complete the content of their offer.

“Art. L. 1414-9. – The contract is awarded to the candidate who presented the economically most advantageous offer, by application of the defined criteria, taking into account the conclusions of the evaluation study mentioned in article L. 1414-2, in the ‘notice of a public call for competition or the consultation regulations and, where applicable, specified under the conditions provided for in Article L. 1414-7.

“The award criteria are weighted. If the public person demonstrates that such a weighting is objectively impossible, they are ranked.

“Among the award criteria, there is necessarily the overall cost of the offer, performance objectives defined according to the subject of the contract and the part of the performance of the contract that the candidate undertakes to entrust to small and medium-sized enterprises and craftsmen.

“Small and medium-sized enterprises are understood to mean companies whose workforce does not exceed 250 employees and whose turnover does not exceed on average over the last three years 40,000,000 euros. Are not considered as small and medium-sized enterprises enterprises whose share capital is held for more than 33% by an enterprise which does not have the character of a small and medium-sized enterprise.

“Other criteria, related to the subject of the contract, may be retained, in particular the technical merit and the innovative nature of the offer, the completion time of the works or equipment, their aesthetic or functional quality.

“Art. L. 1414-10. – The deliberative assembly or the deliberative body authorizes the signing of the partnership contract by the executive body or declares the procedure unsuccessful.

“To this end, the draft deliberation is accompanied by information comprising the overall estimated cost of the contract, on annual average, for the public body and an indication of the share that this cost represents in relation to the annual financing capacity of the public person. This share is measured under conditions defined by decree.

“The public body informs the unsuccessful candidates of the rejection of their offer. A period of at least ten days is respected between the date of notification of this information and the date of signature of the contract.

“When it gives up continuing with the signing of the contract, the public body informs the candidates.

“In response to a written request from an unsuccessful candidate, the public body indicates in writing within fifteen days the reasons for the rejection of its offer, the characteristics and the relative advantages of the selected offer as well as the name of the successful tenderer. of the contract.

“The contract is notified to the successful tenderer before any start of execution.

“Within thirty days of this notification, the public entity sends for publication an award notice in the Official Journal of the European Union. This award notice is drawn up in accordance with the model established by order of the Minister responsible for the economy.

“Art. L. 1414-11. – When the public body is informed of a project by a company or a group of companies and plans to follow it up by concluding a partnership contract, it conducts the procurement procedure under the conditions provided for by articles L. 1414-2 to L. 1414-10.

“As long as he is not in any of the cases of exclusion mentioned in article L. 1414-4 and his technical, professional and financial capacities are sufficient, the author of the project is allowed to participate in the planned dialogue Article L. 1414-7 or the procedure provided for in Article L. 1414-8.

“Art. L. 1414-12. – A partnership contract necessarily includes clauses relating to:

“a) Its duration;

“B) Under the conditions under which the sharing of risks between the public entity and its co-contracting party is established;

“C) The performance objectives assigned to the co-contractor, in particular with regard to the quality of the provision of services, the quality of the works and equipment, the conditions under which they are made available to the public body and, where applicable, their level of attendance;

“D) The remuneration of the co-contractor, under the conditions in which are taken into account and distinguished, for its calculation, the investment, operating and financing costs and, where applicable, the revenues that the co-contractor may be authorized to make obtain by operating the works or equipment to meet needs other than those of the public contracting authority, the reasons and terms of its variations during the term of the contract and the terms of payment, in particular the conditions under which, each year, the sums owed by the public body to its co-contracting party and those for which the latter is liable by way of penalties or sanctions are subject to compensation;

“E) The obligations of the co-contractor aimed at guaranteeing compliance with the allocation of works and equipment to the public service for which the public contracting authority is responsible and compliance with the requirements of the public service;

“F) The methods of control by the public body of the execution of the contract, in particular the respect of the performance objectives, as well as the conditions under which the co-contractor calls on other companies for the execution of the contract, and in particular the conditions under which it respects its commitment to award part of the contract to small and medium-sized enterprises and craftsmen.

“With regard to the subcontractors who are called upon for the construction of works and equipment, a clause obliges the holder of the partnership contract to provide a deposit guaranteeing them payment as and when the work is carried out. , within a maximum period of forty-five days from receipt thereof;

“G) The sanctions and penalties applicable in the event of failure to fulfill its obligations, in particular in the event of non-compliance with performance objectives, on the part of the co-contractor;

“H) Under the conditions under which it may be proceeded, by amendment or, in the absence of agreement, by a unilateral decision of the public body, to the modification of certain aspects of the contract or its termination, in particular to take account of the changes in the needs of the public body, technological innovations or changes in the financing conditions obtained by the co-contracting party.

“Any draft amendment resulting in an increase in the overall amount of the contract greater than 5% is submitted for an opinion to the committee provided for in article L. 1414-6. The deliberative assembly or the deliberative body which authorizes the conclusion of the draft amendment is informed beforehand of this opinion;

“I) The control that

“J) Under the conditions under which, in the event of default by the co-contractor, the continuity of the public service is ensured, in particular when the termination of the contract can be pronounced;

“K) The consequences of the termination, early or not, of the contract, in particular with regard to the ownership of works and equipment;

“L) The procedures for the prevention and settlement of disputes and the conditions under which, where appropriate, recourse to arbitration, with application of French law.

“Art. L. 1414-13. – When a partnership contract entrusts the co-contractor with all or part of the design of the works, the following provisions apply:

“A) Among the conditions for the execution of the contract retained by the public contracting authority, there is the obligation to identify a project management team responsible for the design of the works and the monitoring of their implementation;

“B) The tenders necessarily include, for buildings, an architectural project;

“C) Among the criteria for awarding the contract is necessarily the overall quality of the works.

“When the public body entrusts the co-contractor with only part of the design of the works, it may itself, by derogation from the provisions of the fourth paragraph of article 7 of law n ° 85-704 of 12 July 1985 on to the public project management and its relationship with the private project management, call on a project management team for the part of the design that it assumes.

“Art. L. 1414-14. – An annual report, drawn up by the co-contractor, is presented by the executive of the local authority or public establishment, with any observations, to the deliberative assembly of the local authority or the deliberative body of the establishment public, in order to allow monitoring of the performance of the contract.

“Art. L. 1414-15. – The partnership contract is transmitted by application of articles L. 2131-2, L. 3131-2 and L. 4141-2 to the representative of the State in the department, region or local authority of Corsica, within a period of fifteen days from its signature. The local authority or public establishment attaches all the documents necessary for the exercise of control.

“Art. L. 1414-16. – When the contract entails occupation of the public domain, it is equivalent to authorization of occupation of this domain for its duration. The holder of the contract has, unless otherwise stipulated in the contract, real rights on the works and equipment that he carries out. These rights confer on it the prerogatives and obligations of the owner, under the conditions and within the limits provided for by the clauses of the contract intended to guarantee the integrity and use of the public domain.

“Article L. 1311-4-1 is amended as follows:

” In the third paragraph, after the words: “this article, the words:” are added: “as well as those which are carried out within the framework of contracts of partnership. “ 

Article 15

Article L. 1413-1 of the general code of local authorities is amended as follows:

After the seventh paragraph, a 4 ° is added as follows:

“4 ° The report mentioned in article L. 1414- 14 established by the co-contractor of a partnership contract. “

After the last paragraph, a 3 ° is added as follows:

” 3 ° Any partnership project before the deliberative assembly or the deliberative body decides under the conditions provided for in article L. 1414-2. “

Article 16

The 4 ° of article L. 2131-2 of the general code of local authorities is supplemented by the words: “and partnership contracts”.

The 4 ° of article L. 3131-2 of the general code of local authorities is supplemented by the words: “and partnership contracts”.

3 ° of article L. 4141-2 of the general code of local authorities is supplemented by the words: “and partnership contracts”.
Article 17

After the eleventh paragraph of article L. 2313-1 of the general code of local authorities, a 9 ° is added as follows:

“9 ° An appendix retracing all the financial commitments of the local authority or of the public establishment resulting from the partnership contracts provided for in Article L. 1414-1. “ 

Article 18

An article L. 1615-12 is created in the general code of local authorities as follows:

“Art. L. 1615-12. – The local authority or the public establishment which has entered into a contract provided for in Article L. 1414-1 benefits from the compensation fund for VAT on the part of the remuneration paid to its co-contractor corresponding to the investment made by that party. – here for the needs of an activity not subject to VAT. The part of the remuneration corresponding to the investment is that indicated in the clauses of the contract provided for in article L. 1414-12.

“Eligibility for the VAT compensation fund is subject to the property belonging to the patrimony of the public entity or to the decision of the public entity to integrate the property into its patrimony in accordance with the clauses of the contract.

“At the early end of the contract or not, if the equipment does not belong to the patrimony of the public entity, the latter transfers to the State all the grants received.

“The allocations of the VAT compensation fund are paid according to the terms provided for in Article L. 1615-6, as and when payments are made to the contract holder and after deduction of the share of specific subsidies paid all taxes. understood by the State to the public person. “

TITLE III

MISCELLANEOUS PROVISIONS

Article 19


Title I and Articles 26, 27 and 28 of this Ordinance are applicable to public health establishments and health cooperation structures endowed with public legal personality. However, the provisions of the fourth paragraph of article 9 are not applicable.

Article 20

18 ° of Article L. 6143-1 of the Public Health Code is completed as follows:

After the words: “L. 6148-2”, are added the words: “, the partnership contracts concluded pursuant to Title I of Ordinance No. 2004-559 of June 17, 2004 ”. 

Article 21

Article L. 6145-6 of the same code is amended as follows:

After the word: “markets”, the words: “and partnership contracts” are inserted.

Article 22

Article L. 6148-2 of the same code is amended as follows:

In the last paragraph, after the words: “this article”, are added the words: “as well as those carried out under contracts partnershi”.

Article 23

Article L. 6148-4 of the Public Health Code is amended as follows:

1 ° After the words: “public legal personality,” the words: “as well as” are deleted;

2 ° After the words: “L. 6148-2” are added the words: “, as well as the partnership contracts concluded in application of Title I of Ordinance No. 2004-559 of June 17, 2004”;

3 ° The words: “when they” are replaced by the words: “when”. 

Article 24


Article L. 6148-6 of the Public Health Code is amended as follows:

1 ° After the words: “L. 6148-3,”, the words: “as well as” are deleted;

2 ° After the words: “L. 6148-2”, are added the words: “, as well as the partnership contracts concluded in application of title I of the ordinance n ° 2004-559 of June 17, 2004”.

Article 25The provisions of Title I, as well as Articles 26, 27 and 28, of this Ordinance are applicable to public interest groups.

Article 26

After 1 ° of article 1382 of the general tax code, a 1 ° bis is inserted as follows:

“1 ° bis. Throughout the duration of the contract and under the same conditions as those provided for in 1 °, the buildings constructed under partnership contracts and which, at the end of the contract, are incorporated into the domain of the public person in accordance with the clauses of this contract.

“For the application of the conditions provided for in 1 °, the condition relating to the absence of revenue production must be assessed with regard to the public entity in whose domain the building must be incorporated.

“To benefit from this exemption, the contract holder must attach to the declaration provided for in article 1406 a copy of the contract and any document justifying the use of the building. “

Article 27

The administrative justice code is amended as follows:

1 ° In the first paragraph of article L. 551-1, after the words: “public contracts”, the words: “, partnership contracts” are added;

2 ° In article L. 554-2, after the words: “public contracts”, the words: “, partnership contracts” are added.

Article 28

An article L. 313-29-1 written as follows is inserted after Article L. 313-29 of the Monetary and Financial Code:

“Art. L. 313-29-1. – In the event of the assignment of a claim held by a public entity by the holder of a partnership contract, this contract may provide that, for a portion of the assigned claim representing a fraction of the cost of the investments, the provisions of Articles L . 313-28 and L. 313-29 are not applicable. In this case, the contract provides that the part of the debt mentioned above is, after finding by the contracting public body that the investments have been made, definitively acquired by the assignee, without being able to be affected by any compensation. The holder of the contract is required to release himself to the contracting public body from any debts which he may be liable to him due to breaches of his contractual obligations and, in particular, because of the penalties that may have been imposed on it; opposition to the enforceable statement issued by the public body has no suspensive effect within the limit of the amount covered by the guarantee for the benefit of the assignee. “

Article 29

The Prime Minister, the Minister of State, Minister of the Economy, Finance and Industry, the Minister of the Interior, Internal Security and Local Freedoms, the Keeper of the Seals, Minister of Justice, the Minister of Defense, the Minister of Health and Social Protection, the Minister of Equipment, Transport, Regional Planning, Tourism and the Sea, the Minister of Public Service and State reform and the Minister of Culture and Communication are each responsible for the application of this ordinance, which will be published in the Official Journal of the French Republic. 


Done in Paris, June 17, 2004.


Jacques Chirac
By the President of the Republic:


The Prime Minister,

Jean-Pierre Raffarin

The Minister of State, Minister of the Economy,

Finance and Industry,

Nicolas Sarkozy

The Minister of the Interior,

Internal Security

and Local Freedoms,

Dominique de Villepin

Le Keeper of the Seals, Minister of Justice,

Dominique Perben

The Minister of Defense,

Michèle Alliot-Marie

The Minister of Health

and Social Protection,

Philippe Douste-Blazy

The Minister of Equipment, Transport and

Planning of the territory,

tourism and the sea,

Gilles de Robien

The Minister of the Public Service

and State reform,

Renaud Dutreil

The Minister of Culture

and Communication,

Renaud Donnedieu de Vabres

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