News How to better take into account the evolution of the cost of raw materials in the execution of public contracts?
In a parliamentary question, the deputy Valérie Bazin-Malgras advocates the questioning of the revision clauses with indexes updated by INSEE to reflect the reality of the prices of raw materials as well as the more systematic application of the theory of theUnforeseen by public contracting authorities.According to the government, the systems of the public procurement code are able to amortize the cyclical effects linked to the overnchoring of costs and its consequences on the execution time.
No possible questioning of the price revision clause in progress
The shortages of procurement in raw materials encountered by companies, especially in the construction sector, can result in significant increase in costs and an extension of deadlines within the framework of the execution of public procurement.The levers offered by the law of public procurement can however limit the effects of this cyclical situation.Article R.2112-13 of the public procurement code already requires that public contracts be concluded at revisable prices when the services to which they carry are exposed to major hazards due to the reasonably foreseeable evolution of economic conditions during thecontract execution period.This rule applies to all buyers subject to the public procurement code, national as premises.Its ignorance constitutes a breach of competition obligations.Due to the in principle intangible nature of the contractual price, a revision clause cannot be modified or introduced during the execution of the market if the contract does not expressly provided for the possibility and the methods by a review clause (Article R.2194-1 and 1 ° of article R.2194-6 of the public procurement code), even if this clause was compulsory under article R.2112-13 of the public procurement code. La seule exception admise concerne l’hypothèse dans laquelle l’exécution du contrat approche de son terme et la modification par avenant du prix ou de son mécanisme de fixation intervient dans un sens désavantageux pour le titulaire (Conseil d’État, 7e – 2e chambres réunies, 20 décembre 2017, n° 408562).
Possible compensation on the basis of the theory of economic unforeseen
If the increase in the price of raw materials is likely to upset the economy of the contract, the holder can ask the buyer compensation on the basis of the theory of unforeseen on condition that he is able to demonstratethat the extent of the increase in the price of raw materials concerned was unpredictable, that this price increase has changed the market economy, and that it has resulted in an operating deficit.In support of his request for compensation, it is up to the holder to provide all the necessary supporting documents, and in particular the proof that the latter acquired the raw materials concerned after the period during which a surge in unpredictable prices could beobserved.When these shortages of raw materials put companies holding public procurement in the impossibility of complying with execution times, buyers always have the possibility of not applying late penalties and developing contractual deadlines.
The Prime Minister asked the ministries to ensure that the state services will develop the conditions for the execution of current public procurement contracts and invite the state operators placed under their supervision to follow the same recommendations.The Prime Minister also invited local authorities and their public establishments to do the same.A technical sheet presenting the legal levers to minimize the impact of the situation on current contracts and the points of vigilance in the drafting of future markets was published on the website of the Ministry of the Economy, Finance andthe comeback.It recalls in particular the practices to be adopted to prevent these difficulties in the markets which have passed in this context of tension and volatility on prices and delivery times of certain raw materials and supplies.It also specifies the conditions for drafting a suitable price revision clause and invites buyers to provide deadlines for delaying and exemption from late penalties.It also suggests them to grant advances above 30 % without constitution of financial guarantees and reminds them of the need to meet regulatory payment deadlines.
Reference text: Question n ° 40503 by Ms. Valérie Bazin-Malgras (Les Républicains-Aube) of August 3, 2021, response published in the Joan on October 26, 2021