Quelle distinction entre les pénalités financières ?

What distinction between financial penalties?

Public procurement regulations

The height! Before the law, the legislator put the buyer on the same footing and his contracting partner. It is that, in the event of a failure in terms of delay respectively as to the non -performance of the expected service and in parallel to its payment taking into account a parameter provided, the sanction is required.

Only, the calculation is done as a limited percentage and in addition in the tax. This is how the two parties must accomplish their mission with satisfaction, failing the coercive measures which will be taken against them. The distinction is legendary. Everyone assumes their obligations. The punishment is in order.
These are two regulatory provisions often contained in a public market concluded between two contractual parties in accordance with articles n ° 5, 6, 7.10, 80 and 84 of law n ° 23-12 fixing the general rules relating to public contracts published on August 6, 2023 and articles
N ° 3, 4, 5 and 122 of presidential decree n ° 15-247 of September 16, 2015.
By definition, if the financial penalties are perpetrated for the benefit of the buyer, applied from the finding arched the non -performance of contractual obligations by the partner within the time provided since they necessarily lead to the application of the financial penalty according to a formerly consented formula. However, it does not exceed a percentage of 10% of the total amount of the said market; As for the defective interests, are presented in another downright reversed form, since it is a lack of mandate also within the period provided which follows the receipt of the invoices, therefore after having the recommended service is executed. This runs automatically and without any other formality, for the benefit of the partner a minimum rate of calculated moratoria interest, without twilight, at the banking interest rate of short -term credits, from the day following the expiration of the said period granted.
At this level, we note that the legislator is legal and uncompromising vis-à-vis contractual actors without discrimination or segregation.
In this instructive approach, we state as many questions and this, so that the theme addressed, supposedly and clear.
At what end that these two provisions are put in place? The purpose, in the implementation of these two provisions is Primo, after having fulfilled the duty and/or its contractual obligations, of a regulatory right. It is that, the buyer will be satisfied with the accomplishment of his recommended services in the form of a co -signed market and at the same time, his partner works right to be paid without delay, failing to be compensated according to an arithmetic formula provided for in the said market, designated defective interests.
This is reflected beforehand in the interest that the two parties do not venture into abandonment.
The main objective that the project is carried out in good and due form in its technical stipulations responding to a socio-economic and cultural function or use for the benefit of a national or local community in suffering. As such, the administrative apparatus is reasonably fulfilled its duty of better management.

What does the regulations in force provide beyond this punishment?
In addition to the sanction introduced as financial penalties at a rate of 10% against the defaulting partner when the request requested is unsecured, this
Last risk of other regulatory punishments, consequently, with legal support to be black listed, either momentarily, or for a long time under the terms of references of the two decrees of December 19, 2015 fixing the methods, respectively of exclusion of the participation in public procurement and the registration and withdrawal of the list of prohibited economic operators to participate in public contracts, both published in Jora n ° 17 of March 16, 2016.
Who notes the offense? The offense or disobedience will be noted in parallel on the one hand, during rigorous follow -up by the buyer as to the execution of the service during the period of execution, and on the other hand, as for the delay in payment via a mandated period which will be denounced by his contracting partner having fulfilled his contractual obligations. Everyone assumes their duty separately. Outrage is considered major. It is the prerogative of intolerable abandonment. Following the denunciation of a failure linked to the mandate within the time limit after receipt of the service, the responsibility is fully liability to the buyer who has not made the application of time payment methods as expected, when the said service is also unwanted within the fixed period, the responsibility is the responsibility of the contracting partner.
As such, we declare that the buyer has not been able to choose an fit partner and has not also verified his technical and professional capacities previously and before the phase of the assessment of the offers and the choice of an economically advantageous offer in accordance with the terms of the regulatory provisions contained in articles n ° 52 and 53 of law n ° 23-12 cited above and articles
N ° 53 to 56 of the presidential decree of September 16, 2015. So, the dissatisfaction of each other, depends on their action capacities based on their professional positioning focused on all -round holding potential.
Can we go beyond these provisions? The inapplication, in concomitantly, of its regulatory provisions linked to financial penalties and moody interests purely mean an act of corruption which prejudice to each other. At the time of any external or judicial control, following the error which will be noted, the parties involved will be accused, not only of poor management, but also of a breach of the application of the terms of the law in force. The sanction is criminal. In short, no one can go beyond the application of their unwavering sanctions.
Is it the dilapidation of public funds? As a reminder, article n ° 5 of the law cited above stipulates that three cardinal principles are foundations when the public procurement. One is linked to the good use of public funds. Therefore, in front of any dilatory maneuver as to the use and the right use of public funds would be considered actually as dilapidation of public funds. If the financial penalties are the subject of a payment for the benefit of the public treasury, the Moratorian interests fall such as a cleaver on the buyer’s head and will be paid, without declins, for the benefit of the contracting partner. It is a principle of equal opportunities and fair treatment during a commercial transaction or purely a formalized market. The inapplication of sanctions indicates, either unforgivable negligence or a complicity contested by the provisions contained in the articles
n ° 88 and 89 of law n ° 23-12 suspected above. The dilapidation of public funds also affects said procedure when the recommended service is not performed at the right time and its technical or economic function is postponed because it remains in suffering. At this level, it is indeed, that the manager’s wheel is considered to be broken down and the stunned and thoughtless meninges and the expected level of development is relegated to the background or even remains an illusory design.
What is the opportunity to set up this sanction? The penalty responds to a breach due to the inaccoming of contractual duty. The opportunity is to synchronize favorably the commitment made on the conclusion of a co -signed market. Unsuitable default, a contracting partner or the buyer who is called into question in his contractual relationship, is often qualified as inappropriate.
In short, between unusual duty and the disengagement of payment, within the time limits, in addition to the sanctions inflicted and the insidious attitude of the actors concerned, it is indeed, the public funds and the level of development accusing an unexpected delay due to the project remaining in suffering which are poorly managed and stationed in expectation.
In conclusion, in all certainty and under the law put into force, it is that between the commitment of the service, its period of execution, its lack of payment, which is the subject of a conclusion of a co -signed market, responsibility is shared between the two actors. In the event of failure, the sanction is legal or even deserved.
Nadir Hama
DESS in regulation
public procurement.