Précisions sur les délais de recours applicables aux contrats de la commande publique

FlickR - LA PLUME - THE PEN - Belgapixel'sPetit focus sur les contrats de la commande publique : le décret n°2009-1456 du 27 novembre 2009 achève la transposition de la directive 2007/66/CE du Parlement et du Conseil du 11 décembre 2007, concernant l’amélioration de l’efficacité des procédures de recours en matière de passation des marchés publics.

Comme l’ordonnance n°2009-515 du 7 mai 2009, le décret est entré en vigueur le 1er décembre 2009. Il fixe à seize jours le délai dit « de standstill » pendant lequel les parties ne doivent pas conclure le marché pour donner la possibilité aux candidats évincés d’introduire un recours en référé pré-contractuel. Cela promet donc quelques contentieux…

Pour les marchés passés selon une procédure formalisée, ce délai peut être ramené à onze jours en cas de transmission électronique de la notification à l’ensemble des candidats intéressés. Le pouvoir adjudicateur doit notifier à tous les candidats non retenus le rejet de leur offre ainsi que les motifs de ce rejet. Par ailleurs, si le candidat a vu son offre écartée alors qu’elle n’était ni inappropriée, ni irrégulière, ni inacceptable, la personne publique est tenue de lui communiquer les caractéristiques et les avantages relatifs de l’offre retenue ainsi que le nom du ou des attributaires du marché ou de l’accord-cadre. Ici encore, la transparence devient quasi-totale. On ne saurait mieux faire.

Le décret précise enfin les modalités de publicité applicables aux contrats de partenariat, aux délégations de service public, aux concessions d’aménagement ainsi qu’aux baux conclus avec les titulaires d’une autorisation d’occupation temporaire du domaine public.

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