The planning of the purchase by the contracting authority must respect the equality of the candidates
The contracting authority must not plan its activities under conditions that favor the outgoing candidate: TA New Caledonia, Ord. September 12, 2014, Company TAT¸ req. No. 1400297
Although New Caledonia, a sui generis community, is not subject to the Public Procurement Directives or the Public Procurement Code, the principles of public procurement law (freedom of access to public procurement, equal treatment of candidates and transparency of procedures) are applicable pursuant to article 22 of organic law n ° 99-210 of 19 March 1999 on New Caledonia.
These principles are applied with great seriousness by the pre-contractual injunction judge, as illustrated by the present case.
The Government of New Caledonia launched, at the end of July 2014, a tender procedure for the renewal of its air services supply contract for the prevention, protection and fight against bush fires by means of of aircraft bombers of water.
The performance of the services subject of the contract required the candidates to put in place material resources requiring steps prior to the effective commencement of the services. However, the market documents required a start of performance of the services as soon as the market was notified, without any period of preparation likely to allow the candidates to organize themselves to implement the service after the notification of the contract. This lack of preparation time was likely to favor the incumbent since only he already had equipped and immediately operational aircraft.
This prompted the company to appeal to the pre-contractual summary judge of the Administrative Court of New Caledonia on the grounds in particular that the lack of a period of preparation made it impossible for him to participate in the proceedings and that only the candidate outgoing was able to respond to the consultation in breach of the principle of equal treatment of candidates. The pre-contractual judge will grant this argument by sanctioning the procedure of publicity and competition put forward by the Government of New Caledonia. This solution is in line with the jurisprudence of the Council of State which consistently considers that the stipulations of the terms of reference that favor a candidate taint the procedure of awarding a public contract (in this sense , see for example, EC September 20, 1993, District of the agglomeration Nancy, n ° 152484, EC September 11, 2006, Commune of Saran, n ° 257545).
But the interest of the order resides mainly in the ground of cancellation of the procedure which is due to the bad planning of the procedure and more precisely in the absence the late launching of the consultation, which did not allow to foresee a period of preparation under conditions likely to favor a candidate.
What you must remember :
The contracting authority must plan its purchase in such a way as to avoid that the late launch of its consultation is likely to favor the outgoing candidate, in particular because of the absence of a period of preparation.