In the context of a public contract, the receipt of a penalty notice (procès-verbal de manquement or PV de manquement) is an important signal that deserves particular attention. Although this document does not in itself constitute a penalty, it can have a significant impact on the contractual relationship and the image of the service provider. For an economic operator - whether a legal entity or an individual - it is essential to understand what this document represents, how to respond to it effectively and what precautions to take. This is a legal, strategic and relationship-building stage.

Understanding the nature of the penalty notice

The Official Statement of Default is a document drawn up unilaterally by the contracting authority. Its purpose is to record what is perceived as a breach of the service provider's contractual obligations. The breach may concern a delay, a non-compliant deliverable, a missing clause, a procedure deemed incorrect or behaviour considered inappropriate.

The PV is not yet a legally binding measure. It has no immediate effect on the validity of the contract, but it can be used at a later date: it can influence the final assessment of the contract, be placed in an administrative file or serve as justification for more serious measures, such as early termination, exclusion or reporting to other authorities.

It is therefore a document to be taken seriously, and not just as a formality.

Exercising your right of reply: an essential step

The service provider has the fundamental right to respond to the penalty notice. This is an essential component of the adversarial principle, which is widely recognised in public law and in good contractual practice.

The service provider's response provides an opportunity to shed further light on the issue, to correct or challenge assertions, or to point out elements of the context that have been ignored or misinterpreted by the client. It is important for this response to be formal, written, poised and structured.

Even when the facts appear insignificant or easily rectifiable, the absence of a response may be interpreted as an implicit acceptance of the grievances formulated. This could weaken the service provider's position in the remainder of the contract or in subsequent procedures.

Documenting, tracking and preserving

Managing a penalty notice must be accompanied by good documentation. It is advisable to keep all exchanges relating to this document: the original version received, the response sent with proof of dispatch, any written exchanges with the authorities, and any supporting documents attached to the response.

This administrative rigour is useful in the event of a dispute, an audit, or simply to prove that the company has responded professionally. Complete traceability of the steps taken is a guarantee of seriousness and transparency.

Anticipating possible consequences

An Official Statement of Default can have indirect repercussions. It may influence the final rating of the service provider in the contract concerned, have an impact on the award of future contracts by the same entity, or serve as justification in the event of exclusion.

In certain situations, particularly in local markets (municipalities, inter-municipalities), the penalty notice may be communicated to the supervisory authority or included in internal reports. Eventually, an accumulation of penalty notices or a breach considered serious could lead to restrictions on access to other contracts.

It is therefore important to treat each ticket as an alert to be treated with care, regardless of its perceived seriousness.

Conclusion

An Official Statement of Default is a document to be taken seriously, but it does not constitute a conviction. It is a formal act of communication from the client, which calls for a proportionate, reasoned and professional response from the service provider.

Responding not only enables you to defend your position, but also to maintain a high-quality contractual relationship, correct any misunderstandings and preserve your image with contracting authorities.

Sources

• Federal Public Service BOSA - Knowledge Centre on Public Procurement
• European Commission - Exclusion and Selection Criteria in EU Public Procurement
• OECD - Integrity in Public Procurement