Mode d'emploi du référé contractuel pour les DSP

Instructions for use of the contractual summary for the DSP

by gmorales on 29 November 2013 | Category: Pre-contractual & Contractual referral
Mode d'emploi du référé contractuel pour les DSP Mode d'emploi du référé contractuel pour les DSP

Mode d'emploi du référé contractuel pour les DSP Instructions for use of the contractual summary for the DSP

Reminder No. 1: The admissibility of the contractual summary for the DSP

A distinction should be made between candidates who have not previously lodged a pre-contractual referral and those who have already lodged an application with the pre-trial judge.

Hypothesis 1: Candidates who have not entered a pre-contractual referral

Pursuant to Articles L. 551-14 and L. 551-15 of the Administrative Justice Code and Article R. 1411-2-1 of the General Code of Territorial Collectivities, the admissibility of the contractual referent is allowed in the following two cases: :

  • Where the contracting authority or the contracting entity has not made public its intention to conclude the contract under the conditions laid down in Article R. 1411-2-1 of the CGCT.
  • Where the contracting authority or the contracting entity has not observed, before signing it, a period of at least 11 days from the date of publication of the notice provided for by that article and the date of conclusion of the contract.

Hypothesis 2: Candidates who have already initiated a pre-contractual referral

In this case, the admissibility of the contractual referred person is also admitted in the two following cases:

  • Where the contracting authority or the contracting entity has failed to comply with the obligation to suspend the signature as from the date of referral to the Tribunal.
  • Where the contracting authority or the contracting entity has not complied with the Court's pre-contractual injunction.

Reminder n ° 2: The deficiencies likely to be invoked

Article L 551-18 of the CJA sets out a limitative list of deficiencies that may be invoked in support of a contractual summary.
They fall into three categories:

  • the total absence of advertising or the absence of publication of the notice of competition in the OJEU when such publication is mandatory;
  • the signature of the contract before the expiry of the period of suspension which runs from the date of dispatch of the award decision to the economic operators who submitted an application or an offer when such a deadline is mandatory;
  • the signature of the contract while the pre-contractual judge has been seised.

In the first case, the cancellation of the contract may be pronounced except for reasons of general interest. In the other two cases, the annulment is incurred, subject to the same reservation, only if, in addition, the breach of those obligations deprived the applicant of his right to exercise a pre-contractual summary and if the publicity and tendering procedure to which the awarding of the contract was subject has been disregarded in a way that affects the chances of the appellant being declared successful (CE 30 November 2011, Société DPM Protection, application no. 350788).

In the case of CSP, the company which has not been selected can not invoke the failure of the contracting authority to have failed to respect the period of suspension which runs from the notification of the award decision to the candidates excluded, since Article 80 of the Code des Marches Publics is not applicable to this type of contract and the General Code of Local Authorities does not provide for any minimum period between the notification and the signing of the contract (CE 19 January 2011, Grand Maritime Port of Le Havre, Ref. No. 343435)

Finally, in the case of a PSD, the cancellation can only result from the absence of all the publicity measures required for its award or publication in the Official Journal of the European Union in the event that such publication is prescribed.