A subcontractor of an unsuccessful candidate can challenge the validity of a contract!
EC October 14, 2015, Réunion Region, Ref. No. 391183
A subcontractor of an unsuccessful candidate may challenge the validity of a contract in the same manner as an unsuccessful candidate if he has sufficient cause for interest.
In this case, the Council of State provides a first indication on this point considering that when the subcontractor proposed by the tenderer was decisive in the elaboration of the application or the offer, it must be considered as justifying an interest sufficiently damaged to enable him to contest the validity of the contract concluded with another company.
Rule # 1: A subcontractor of an unsuccessful candidate may challenge the validity of a contract
A company does not justify, in its sole capacity as the subcontractor of an unsuccessful candidate, an interest that is prejudiced and may render it admissible to contest the validity of the contract concluded with another company.
On the other hand, the Conseil d'Etat considers that, where the offer of one of the ousted candidates is based on the technology proposed by the subcontractor, the latter must be considered as having a sufficient injured interest, identical to that of the unsuccessful candidate, to make it admissible to contest the validity of the contract concluded with another undertaking before the administrative judge.
The new case law Tarn et Garonne in terms of public procurement now opens the courtroom to all third parties including now to subcontractors when they can be recognized a serious interest in concluding the contract (CE 4 April 2014, Department Tarn and Garonne, No. 358994 with the conclusions of Public Rapporteur Bertrand DACOSTA).
Rule n ° 2: Analysis of the solution made by the Council of State
In this case, the Conseil d'Etat considers that once the bid of one of the ousted candidates is based on the technology proposed by the subcontractor, the latter must be considered as having a sufficient interest injured, identical to that of the ousted candidate, to make it admissible to challenge the validity of the contract before the administrative judge. This is a first case of opening up for the benefit of third parties to the contracts which will certainly be followed by many other examples. With regard to the subcontractors, in view of the judgment rendered, the State Council announces that the interest giving standing will be assessed on a case by case basis depending on the importance of the intervention of the subcontractor next to the ousted candidate.
This opening of the courtroom to subcontractors is in line with a judgment of 13 April 2010 in the City of Frankfurt am Main, in which the Court of Justice of the European Union has already had the opportunity to consider that the change of a subcontractor during the performance of a contract may imply a calling into question of the initial conditions of the call for competition when recourse to the latter rather than to another has given the specific characteristics of the service in question, a decisive factor in the conclusion of the contract (ECJ of 13 April 2010, City of Frankfurt am Main, Case C 91/08).
To be eligible to contest the validity of the contract, the subcontractor must show that his intervention was decisive in the elaboration of the candidacy or the bid of the ousted candidate. In other words, it must show that the use of its services rather than another subcontractor was, in the light of the particular characteristics of the contract at issue, a decisive factor in enabling the unsuccessful candidate to participate in the procedure.
Board of state
N ° 391183
Published in Lebon collection
7th / 2nd SSR
Mrs Charline Nicolas, rapporteur
Mr Gilles Pellissier, public rapporteur
SCP MONOD, COLIN, STOCLET; SCP GATINEAU, FATTACCINI, lawyers
Reading of Wednesday, October 14, 2015
IN THE NAME OF THE FRENCH PEOPLE
Considering the following procedure:
The company Pyxise asked the judge of the interim administrative court of Saint-Denis, ruling on the basis of Article L. 521-1 code administrative justice, to suspend the execution of the decision of 2 March 2015 by which the Réunion region rejected the offer made by the Graniou / Moreschetti Axians grouping, in which it participated as a subcontractor for the "Wi-fi regional consumer" market, and, on the other hand, the suspension of this market.
By an order No. 1500419 of 3 June 2015, the judge of the administrative court of Saint-Denis suspended the execution of the contract in dispute.
By a summary appeal, a supplementary memorial and a reply, registered on 19 June, 6 July and 26 August 2015 at the litigation secretariat of the Conseil d'Etat, the Réunion region asks the Conseil d'Etat to:
1 °) to cancel this order;
2 °) ruling in summary proceedings, to reject the claims of the company Pyxise;
3 °) to charge the company Pyxise the payment of the sum of 6 000 euros under Article L. 761-1 code administrative justice.
Considering the other parts of the file;
- the general code of local authorities;
- the code of public contracts;
- the code of administrative justice;
After hearing in open session:
- the report of Mrs Charline Nicolas, auditor,
- the conclusions of Mr Gilles Pellissier, public rapporteur;
The word having been given, before and after the conclusions, to the SCP Monod, Colin, Stoclet, lawyer of the Region Meeting, and the SCP Gatineau, Fattaccini, lawyer of the company Pyxise;
Considering the note under deliberation, recorded on October 5th, 2015, presented for the company Pyxise;
1. Considering that under the first paragraph of Article L. 521-1 code administrative justice: "When an administrative decision, even rejection, is the subject of a motion for annulment or reformation, the application for interim measures, the Court may order the suspension of the execution of that decision, or of certain of its effects, where the urgency justifies it and there is evidence of its own to create, in the state of the investigation, a serious doubt as to the legality of the decision "; that, when the administrative court is seized of an application contesting the validity of a contract, the judge of the interim measures can be seized, on this basis, of a request tending to the suspension of its execution; only where the urgency so justifies and where there is evidence of a means capable of giving rise to a serious doubt as to the lawfulness of the contract and to the cessation of its execution or its annulment, having regard to the interests in presence, he may order the suspension of his execution;
2. Considering that the documents of the file submitted to the judge of the administrative court of Saint-Denis that on March 19, 2015, the Reunion region has concluded with the company Nextiraone a public contract entitled "Wi-fi regional general public" , relating to the supply, maintenance and ancillary works for the implementation of a solution of free public access points to the wireless Internet network known as "Wi-Fi hotspot", on several identified sites of the Reunion Island ; that the company Pyxise, subcontractor of the grouping Garniou / Moreschetti Axians whose offer was rejected, has seized the judge of the interim, on the basis of the article L. 521-1 of the code of administrative justice, a request for the suspension of the execution of the decision rejecting the offer of the aforementioned group of 2 March 2015 and the suspension of the execution of this contract; that by an order of June 3, 2015, the judge of the interim administrative court of Saint-Denis granted the request for suspension of performance of the contract and rejected the surplus conclusions of the company; that the appeal of the Region Reunion for the annulment of this order should be regarded as directed against its articles 1, 2 and 4;
3. Considering that in ordering the suspension of the contract at issue, the judge hearing the application for interim relief stated that it is for the judge hearing the application for interim relief to bring an action for the suspension of a "cancellation measure" the condition of urgency, on the one hand, the serious and immediate breaches that the annulment in dispute is likely to bring to a public interest or to the interests of the applicant and, on the other hand, the general interest or the interest third parties, "in particular the holder of a new contract whose conclusion would have been made necessary by the measure requested", which may focus on the immediate execution of this measure; that thus relying on a rule of law not applicable to the request for suspension of the execution of the contract in litigation before him, the judge of the emergency courts of the administrative court of Saint-Denis tainted his order of error of law ; Consequently, without it being necessary to examine the other grounds of appeal, Articles 1, 2 and 4 of the order under appeal must be annulled.
4. Considering that it is necessary, in the circumstances of the case, to rule on the request for suspension of performance of this contract, pursuant to the provisions of Article L. 821-2 of the Code of Justice administrative;
5. Considering that if the applicant company is not a competitor whose application or offer was rejected or who would have been prevented from applying, and if in his only capacity as a company likely to intervene as a sub-contractor it does not justify an injurious interest which may make it admissible to contest the validity of the contract in question, it is clear from the evidence in the market that the offer of one of the applicant groups was based on the technology provided by that company; that, in these circumstances, it justifies being aggrieved by the conclusion of the contract in dispute sufficiently sufficiently direct and certain to be admissible to ask cancellation and suspension;
6. Whereas, however, the pleas put forward by the applicant company against the contract in dispute, based on the absence of publication in the Official Journal of the European Union and a minimum response period of fifty-three days, and that this contract disregards Article L. 1425-1 of the general code of local authorities and Article 10 of the Code des Marches Publics are not likely to create, in the state of the instruction, a doubt serious as to the legality of the relevant market;
7. Considering that it follows from all the foregoing that, without it being necessary to rule on the condition of urgency or on the plea of inadmissibility opposed by the Region Meeting to the request for suspension of the disputed market this request must be rejected;
8. Considering that the provisions of Article L. 761-1 of the Code of Administrative Justice preclude an amount being charged to the Reunion Region which is not, in the present proceedings, the party loser; On the other hand, in the circumstances of this case, it is appropriate to charge Pyxise the sum of EUR 4,500 to be paid to the Réunion Region under those provisions for the whole of the procedure ;
Article 1: Articles 1, 2 and 4 of the order of 3 June 2015 of the judge of the administrative court of Saint-Denis are annulled.
Article 2: The conclusions of the company Pyxise tending to the suspension of the execution of the contract in dispute and its conclusions presented under the provisions of Article L. 761-1 code administrative justice are rejected.
Article 3: The Pyxise company will pay to the Reunion area a sum of 4 500 euros under Article L. 761-1 code administrative justice.
Article 4: This decision will be notified to the Reunion region, the company Pyxise and the company Nextiraone.