in the event of negotiations, it is the final offer that counts

In a decision dated October 31, the Council of State ruled on the offer to be taken into account in the event of negotiation to determine the price to be updated in the context of a public contract concluded at a firm price (CE, October 31, 2024, no. 491280, mentioned in the Lebon collection). A group of companies contested the establishment of the balance of the works contract for bringing an airport up to standard, concluded in 2009 following a negotiation. In particular, he requested payment of the price update.

Compensate for a shift

A few reminders are in order. Discounting is a method of varying prices by reference to indices or indexes. As the Bercy Legal Affairs Department indicates in its Guide to prices in public procurement, “it compensates for a gap between the date of fixing the price and the start of execution” for take into account variations that have occurred over time. It therefore only intervenes once, in order to “reset the price that had been fixed in the market”.

The discount clause is mandatory

Updating is mandatory in public works contracts concluded at a firm pricethat is to say an invariable price throughout the duration of the contract, as long as a “period of more than three months elapses between the date on which the tenderer fixed his price in the offer and the date start of performance of services” (articles R. 2112-10 and R. 2112-11 of the Public Procurement Code). These provisions already appeared in the Public Procurement Code (art. 18), applicable to the case judged by the Council of State.

The latter also deduces from the rules laid down by the code that the obligation concerns the introduction of an updating clause in fixed price works contracts, but that its application only occurs “when a period of more than three months elapses between the date on which the candidate set his price in the offer and the date on which performance of the services begins”. Determining the pricing date is therefore of particular importance.

Starting point

The CCAP of the market in question stipulated in this regard that the month in which the price was established was the month preceding the deadline for submission of offers.i.e. in March 2009. The contract having finally been concluded in October of the same year, therefore more than three months later, the holder considered that the price should have been updated.

However, the Council of State will retain thatIn the case of a procedure with negotiations resulting in the submission of several offers, it is in fact necessary to remember the date on which the holder made his final offer. It thus confirms and clarifies the solution of the administrative court of Marseille (CAA Marseille, November 27, 2023, n° 22MA01954), according to which “in the case where a negotiation begins between the public buyer and the candidate, it is the date on which the latter finally sets the terms of its offer which must normally be regarded as the date of fixing the price. And this regardless of the specific stipulations of the CCAP. In this case, the contractor had submitted its final offer in October 2009, less than three months before the start of the services: the updating clause should therefore not apply.

A solution that varies depending on the terms of the negotiation

Note that the new CCAG works (article 9.4.4 of the 2021 edition) now expressly indicates that in the event of negotiation or competitive dialogue, “the date to be taken into account is the date of submission of the final offer by the holder”which was not the case in the CCAG of 1976 applicable to the market in question (art.10.44).

The High Court, however, provides additional clarification under the terms of the CCAG: “If the negotiation could not relate to the price, it is the last offer submitted by the candidate before negotiation which must be considered as the date of fixing the price”.

CE, October 31, 2024, n° 491280, mentioned in the Lebon collection