Assessment of the period during which performance of the services of a public contract begins
The judge of the pre-contractual recourse is competent to assess the regularity of the time provided between the date of deposit of the offers and that of the beginning of the services
In this case, the Council of State agrees to examine the regularity of the time provided between the date of submission of tenders and that of the beginning of the services with regard to the principles of the public order to verify if it is not of a nature to benefit the incumbent (who has for example all the necessary equipment to be able to start the services in time and in hours within the very short deadlines given by the specifications).
Rule n ° 1:
It is up to the administrative court to determine whether the time limit is clearly irrelevant to the needs of the contracting authority and whether it would therefore have the effect of breaking the principle of equality by favoring certain local businesses and by dissuading others.
Rule n ° 2:
The documents for the consultation must indicate in sufficient detail and in detail the conditions of performance of the contract (EC, 22 March 2000, No 207804, EC, 19 October 2001, No 234298), but not intended to answer all the questions that may be asked by the candidates, to whom it is necessary to request any additional information.
Board of state
N ° 385617
7th and 2nd subsections combined
Mr Vincent Montrieux, rapporteur
Mr Bertrand Dacosta, public rapporteur
SCP MEIER-BOURDEAU, LECUYER; SCP GASCHIGNARD, lawyer (s)
Reading of Friday, April 10, 2015
IN THE NAME OF THE FRENCH PEOPLE
Considering the following procedure:
The company TAT asked the judge of the courts of the administrative court of New Caledonia, on the basis of Article L. 551-24 of the Administrative Justice Code, to cancel the procedure of awarding the contract to purchase orders for services Civil Security, Rescue and Rescue Agency engaged by New Caledonia. By an order n ° 1400326 of October 23, 2014, the administrative court granted this request.
By a summary appeal, a supplementary memorial and a reply, registered on 7 and 24 November 2014 and 14 January 2015 to the litigation secretariat of the Conseil d'Etat, the Government of New Caledonia asks the Conseil d'Etat to:
1 °) to cancel this order;
2 °) ruling in summary, to reject the application of the company TAT;
3 °) to charge the company TAT the payment of the sum of 5,000 euros under Article L. 761-1 code administrative justice.
Considering the other parts of the file;
- the organic law n ° 99-209 and the law n ° 99-210 of March 19th, 1999;
- Decree No. 2013-1250 of 27 December 2013;
- the deliberation of the Congress of New Caledonia No. 136 / CP of 1 March 1967, amended, regulating public contracts;
- the code of administrative justice;
After hearing in open session:
- the report of Mr. Vincent Montrieux, master of requests in extraordinary service,
- the conclusions of Mr Bertrand Dacosta, public rapporteur;
The word having been given, before and after the conclusions, to the SCP Meier-Bourdeau, Lecuyer, lawyer of the government of New Caledonia, and the SCP Gaschignard, lawyer of the company TAT;
1. Considering that under the terms of Article L. 551-24 of the Code of Administrative Justice: "In New Caledonia (...) the president of the administrative court, or the magistrate he delegates, may be seized in breach of the publicity and competitive bidding requirements of public procurement and contracts under locally applicable provisions. / The persons authorized to act are those who have an interest in concluding the contract and who are likely to be harmed by this breach, as well as the High Commissioner of the Republic in the case where the contract is concluded or must be concluded by a local authority or a local public institution. / The president of the administrative court can be seized before the conclusion of the contract. He may order the author of the breach to comply with his obligations and suspend the execution of the contract or the execution of any decision relating thereto. It may also annul these decisions and delete the clauses or requirements intended to appear in the contract that do not comply with those obligations. As soon as it is seized, it may order to defer the signature of the contract until the end of the procedure and for a maximum duration of twenty days. / The president of the administrative court or his / her delegate rules in the first and last instance in the form of interim measures. "
2. Considering that the documents in the file submitted to the judge hearing the application for interim relief show that New Caledonia, to which the jurisdiction of the State Department responsible for civil security was transferred on 1 January 2014, appealed tenders for the award of a contract for purchase orders for civil aviation, rescue and rescue services for three years, involving the use of a helicopter with equipment and a crew capable of exercise in perilous environment, as well as associated maintenance; that, by the order contested, the judge pre-contractual recourse of the administrative court of New Caledonia, seized by the company TAT, canceled the procedure of award of the market;
3. Whereas, in order to annul that procedure, the President of the Court of First Instance considered that the decision of the public body to provide for the start of performance of the contract four weeks after the date of submission of the tenders constituted a breach of his obligations; competition, in the absence of a period of preparation allowing any candidate to implement the means required by the contractual documents to tender usefully, while some operators could already offer the required services; that by imposing on New Caledonia to provide for a longer period between the date of submission of offers and that of the beginning of benefits to allow a greater number of companies to be candidates, whereas it belonged to it to find out whether the time limit was clearly unrelated to the identified needs, the judge hearing the application for interim relief made an error of law; that as a result and without it being necessary to examine the other grounds of the appeal, this order must be annulled;
4. Considering that it is necessary, in the circumstances of the case, to rule on the application for interim measures pursuant to the provisions of Article L. 821-2 code administrative justice;
5. Considering, in the first place, that the TAT company maintains that the special technical clauses of this contract for the purpose of chartering a helicopter with crews for civil security, rescue and rescue missions would be tainted by inaccuracies and ambiguities with regard to the expected services; that, however, the fact that this document, which clearly defines the needs of the public person as to the characteristics of the aircraft and the crews, does not answer all the questions asked by the applicant company can not in itself characterize inaccuracies were such as to dissuade her from applying, so further that it was possible for her to request further information; that if the company argues that no answer has been made to some of its interrogations, it follows from the investigation that the message it sent to the government departments of New Caledonia consisted mainly of observations on the procedure not requiring a response from the public body and a question on the assumption of the cost of the pilots' training, from which it was clear from the documents of the consultation that it was the responsibility of the holder of the contract; that the means drawn from the vagueness of the documents of the consultation must, consequently, be dismissed;
6. Considering, secondly, that the special administrative clauses stipulate that an exceptional advance, based on disbursements resulting from the performance of one of the preparatory operations for the performance of the contract and capped at 15% of the amount of it may be paid to the holder of the contract; whereas, contrary to the contention, no principle or rule requires the contracting authority to indicate, in absolute value, the maximum amount of the advance which may be granted to the contract holder;
7. Considering, thirdly, that the date fixed by the Government of New Caledonia for the beginning of the performance of the contract responds to the need for relief resources for the hurricane season beginning at the end of the month of November; that, in particular, particularly since the call for tenders was published on 20 August, for a deadline for the submission of tenders on 3 October and a start of execution by 1 November at the latest, it is not established that the fixing of such a start date for the performance of the contract, justified by the need for New Caledonia to have operational emergency services before the start of the hurricane season, was irrelevant to the needs identified and would have been for the purpose of favoring local businesses, or that companies, likely to be interested and possessing technical capabilities, would have been prevented from applying on that fact alone; Consequently, the plea alleging that the procedure in dispute infringes the principle of equal access to public contracts must be rejected.
8. Considering that it follows from all the foregoing that, without it being necessary to rule on the plea of inadmissibility of the Government of New Caledonia, the TAT company is not justified in seeking the annulment of the award procedure;
9. Considering that the provisions of Article L. 761-1 of the Code of Administrative Justice preclude an amount being charged to New Caledonia which is not, in the present case, the losing party; whereas, in the circumstances of the case, TAT should be charged to the sum of 4,500 euros to be paid to New Caledonia;
Article 1: The order of the judge of summary of the administrative court of New Caledonia of October 23, 2014 is canceled.
Article 2: The request made by the company TAT before the administrative court of New Caledonia as well as its conclusions presented under the provisions of Article L. 761-1 code administrative justice are rejected.
Article 3: The company TAT will pay to New Caledonia a sum of 4 500 euros under article L. 761-1 code administrative justice.
Article 4: This decision shall be notified to the Government of New Caledonia and TAT.