Defects due to the lack of mention of these channels and delays of appeal that non-compliance with this period of suspension do not affect the validity of the contract
Defects due to the lack of mention of these channels and delays of appeal that non-compliance with this period of suspension do not affect the validity of the contract.
Rule n ° 1:
The obligation on the part of the contracting authority, on the one hand, to mention the ways and time-limits for appeal against the award procedure available to the candidates for the award of a contract and, on the other hand, to comply with a deadline of suspension between the notification of the rejection of a candidate's offer and the signing of the contract, is intended only to allow the unsuccessful candidates to usefully appeal to the pre-contractual judge. As a result, defects in both the failure to mention these channels and the time-limits for appealing to failure to comply with this period of suspension do not affect the validity of the contract and can not, therefore, justify its cancellation or his termination.
Rule n ° 2:
The awarding of a score for each criterion and sub-criterion for judging the offers followed by a brief comment on the more or less complete and more or less adapted to the specifics of the site of the elements of the technical paper produced by the candidates for the support of their offer proves the analysis of the tenders by the contracting authority.
Board of state
N ° 366153
ECLI: FR: CESSR: 2014: 366153.20141203
Unpublished at Lebon collection
7th and 2nd subsections combined
Mr Frédéric Dieu, rapporteur
Mr Gilles Pellissier, public rapporteur
SCP GARREAU, BAUER-VIOLAS, FESCHOTTE-DESBOIS; FOUSSARD, lawyer (s)
Reading of the Wednesday, December 3rd, 2014
IN THE NAME OF THE FRENCH PEOPLE
Considering the appeal and the complementary memorandum, registered on February 18 and May 17, 2013 to the litigation secretariat of the Conseil d'Etat, presented for Bancel, whose head office is 36-38 chemin de Cornillon in La Plaine Saint-Denis (93214 ); the company Bancel asks the Council of State:
1 °) to cancel the judgment n ° 11NC00416 of December 17, 2012 by which the administrative court of appeal of Nancy rejected his request tending, on the one hand, to the cancellation of the judgment n ° 0901925 of January 13, 2011 by which the Administrative Court of Besançon condemned the Audincourt Public Housing Establishment for Elderly People (EHPAD) to pay him the sum of 3,000 euros in damages and dismissed its claims for damages. cancellation, or failing that, the termination of the contract (lot 2) relating to the construction of the retirement home of Audincourt concluded with the company Demathieu and Bard, and, secondly, the conviction of the EHPAD Audincourt to pay him, primarily, the sum of 375 000 euros, with default interest, for loss of profit and, in the alternative, the sum of 20 000 euros, with default interest, the the costs incurred for the presentation of his offer;
2 °) settling the case on the merits, to grant his conclusions of appeal;
3 °) to charge EHPAD payment of the sum of 6 000 euros and the sum of 35 euros under Articles L. 761-1 and R. 761-1 code administrative justice and order him to pay the full costs of the proceedings;
Considering the other parts of the file;
Given the code of public contracts;
Considering the code of administrative justice;
After hearing in open session:
- the report of Mr. Frédéric Dieu, master of petitions,
- the conclusions of Mr Gilles Pellissier, public rapporteur;
The word having been given, before and after the conclusions, to Me Foussard, lawyer of the company Bancel, and to the SCP Garreau, Bauer-Violas, Feschotte-Desbois, lawyer of the society the Public Establishment of Accommodation for Elderly Dependent (EHPAD);
1. Considering that it appears from the documents in the file submitted to the judges of the bottom that the Audincourt Public Housing Establishment for Dependent Old People (EHPAD) launched on 29 April 2009 an open tendering procedure in view of the award of a construction contract for a retirement home; that the company Bancel presented, for the allocation of a lot of this market, an offer which was not retained; she appealed to the Administrative Court of Besançon of an appeal contesting the validity of the contract concluded and leading to the sentence of the EHPAD to compensate him for the damage suffered as a result of his illegal eviction; that, by the judgment attacked, Nancy Administrative Court of Appeal has confirmed the judgment of January 13, 2011 by which the Administrative Court of Besançon had only condemned the EHPAD Audincourt to the compensation costs that the company Bancel had engaged for the presentation of his offer; that, by way of the incidental appeal, the EHPAD also concludes the cancellation of this judgment;
2. Considering that the Administrative Court of Appeal of Nancy pointed out in the procedure of the contract of the defects defects holding, on the one hand, to the absence of public of the ways and time limits of appeal against the procedure of handover in the notice of competition, on the other hand, the non-respect of the waiting period between the notification of the rejection of their offer to the evicted companies and the signature of the contract with the successful tenderer, and finally the absence of analysis of the technical value of the offers, chosen as one of the selection criteria announced in the consultation documents; that considering all these defects of insufficient seriousness to justify the cancellation or termination of the contract, having regard in addition to the fact that its deadline for execution was set at 31 August 2011 and the need, relied on by EPHAD, that work is continuing to accommodate dependent elderly people in the new building, the court confirmed the rejection of the company's findings to this effect; that the court however ruled that the eviction of the company Bancel was illegal because of the irregularity noted in the analysis of the offers and, considering that this company was not deprived of any chance of obtaining the market, it condemned the EHPAD to compensate it for the costs it incurred for the presentation of its offer;
The claims against the judgment in so far as it ruled on the claim for compensation:
3. Considering that it appears from the documents in the file submitted to the judges of the merits, including the mail of October 7, 2009 addressed to the company Bancel and the appendix to the analysis report of the offers, that the offer of the company has received, like those of its competitors, a score for each of the three sub-criteria of the criterion of the technical value, each of these notes being justified by the more or less complete character and more or less adapted to the specificities of the site of the elements of the memory produced by the candidates in support of their offer; that, in finding that the EHPAD had not proceeded to the analysis of the technical value of the offers but was limited to appreciate the number of documents produced, the Administrative Court of Appeal has distorted the documents of the file ; that, consequently, EHPAD is entitled to ask, by way of cross-appeal, annulment of the judgment attacked as he ruled on the application indemnity society Bancel; that there is therefore no need to rule on the conclusions of the main appeal having the same purpose;
The claim of the company Bancel against the judgment in so far as it ruled on his claims for annulment or termination of the contract:
4. Considering, in the first place, that the obligation on the part of the contracting authority to mention the ways and time-limits for appeal against the award procedure available to the candidates for the award of a contract and, secondly, to respect a period of suspension between the notification of the rejection of a candidate's tender and the signature of the contract, is only intended to allow the unsuccessful candidates to usefully appeal to the pre-contractual judge of interim relief; that, as a result, defects in both the lack of mention of these channels and time limits for appealing that non-compliance with this period of suspension do not affect the validity of the contract and can not, therefore, justify its cancellation or termination; that this ground, which does not involve any assessment of fact, must be substituted for that, drawn from the insufficient gravity, of these defects which the court has retained;
5. Considering, secondly, that if Bancel submits that the Administrative Court of Appeal also committed an error in the legal characterization of the judgment after noting that the EHPAD did not carry out the analysis of the the technical value of the tenders but had merely assessed the number of documents produced, that the execution of the contract could nevertheless continue, it follows from what was said in paragraph 3 that the Court's assessment of the existence of such irregularity is vitiated by denaturing; that the means of society Bancel can only be dismissed;
6. Considering, thirdly, that the Court, whose judgment is sufficiently reasoned on this point, has found that it is by a sovereign assessment which is free from distortion that the need to continue the works which are the subject of the contested contract, in order to to allow the care of dependent elderly people in a new building, justified the continuation of the execution of the contract;
7. Considering that it follows from all the foregoing that the judgment under appeal which, contrary to what is contended, is endorsed by the President, the Rapporteur and the Registrar, must be annulled only in so far as it has ruled on the indemnity application of Bancel;
8. Considering that the provisions of Article L. 761-1 of the Code of Administrative Justice preclude the fact that Audincourt EHPAD who is not, in the present case, the part losing, the payment of an amount for costs incurred by the company Bancel and not included in the costs; that a sum of 3,000 euros should be paid to the ECHPAD Audincourt, in application of these provisions, and to leave the amount of the contribution to legal aid ;
Article 1: The judgment of the Administrative Court of Appeal of Nancy of December 17, 2012 is canceled in so far as it ruled on the claim for compensation presented by the company Bancel.
Article 2: The case is referred, to this extent, to the Administrative Court of Appeal of Nancy.
Article 3: There is no need to rule on the conclusions of Bancel's appeal for the annulment of the judgment of the Nancy Administrative Court of Appeal of 17 December 2012 in so far as it gave judgment on his claim for compensation.
Article 4: The rest of Bancel's appeal is dismissed.
Article 5: The company Bancel will pay a sum of 3,000 euros to the Public Establishment for Accomodation for Elderly Dependents of Audincourt in application of the provisions of Article L. 761-1 code administrative justice.
Article 6: This decision will be notified to the company Bancel and Audincourt Public Establishment for Seniors Dependent Housing.