Before or after April 4, 2014: the same breach will be operative or inoperative .......!
CE 5 February 2016, Joint Public Transport Union Hérault Transport. req.n ° 383 149
In this case, the Conseil d'Etat gives details of the entry into force of the Tarn and Garonne case law as well as the new methods for assessing the deficiencies raised by candidates who have been excluded from an advertising and competitive bidding procedure. according to the date of signature of the contract under attack.
Rule n ° 1:
The Council of State recalls the rule according to which the thirds to an administrative contract likely to be aggrieved in its interests sufficiently sufficiently direct and certain by its passage or its clauses are admissible to form before the judge of the contract a recourse of a full jurisdiction contesting the validity of the contract or of some of its non-regulatory clauses that are divisible (excluding prefect and member of the deliberative body concerned). The Conseil d'Etat also recalls that, in application of the Tarn and Garonne case-law (EC 4 April 2014, Tarn et Garonnne Department, application no. 358994), the third party who acts as an unsuccessful candidate may claim that breaches the rules of advertising and competition which are directly related to his eviction.
Rule n ° 2:
The Conseil d'Etat then recalls that this case law only applies to contracts signed as from 4 April 2014.
The rule is therefore:
- If the contract is signed before April 4, 2014, the ousted competitor may invoke all breaches of the rules of advertising and competition against the contract.
- If the contract is signed after April 4, 2014, the ousted competitor can only invoke defaults that are directly related to his eviction.
Rule n ° 3:
Article 77 of the Public Procurement Code in its current version states that the duration of contracts with purchase orders may not exceed four years, except in "exceptional" cases duly justified, in particular by their purpose or by the fact that their execution requires depreciable investments over a period of more than four years. Thus, when a public purchaser decides to launch a contract with purchase orders for a duration greater than four years, it has every interest to justify, with supporting documents, the reasons for this excess to avoid any possible dispute in case of litigation.
In the present case, the Conseil d'Etat considers that the awarding of a six-year purchase order contract for school transport services is not justified by the depreciation period for vehicles whose tax administration considers it to be four or five years, especially as the successful tenderer was allowed to offer in his tender vehicles with a maximum of ten years. The procedure was therefore considered irregular as contrary to the provisions of Article 77 of the Public Procurement Code.
Board of state
N ° 383149
Mr Vincent Montrieux, rapporteur
Mr Olivier Henrard, public rapporteur
SCP GARREAU, BAUER-VIOLAS, FESCHOTTE-DESBOIS, lawyer (s)
Reading of Friday, February 5th, 2016
IN THE NAME OF THE FRENCH PEOPLE
Considering the following procedure:
The company "Voyages Guirette" has asked the Administrative Court of Montpellier, on the one hand, the cancellation of the contract n ° 2008-39 concluded by the mixed transport union Hérault Transport with the momentary group of companies Pons Laurès and on the other hand, the conviction of the mixed syndicate to compensate him for the damage resulting from his unlawful eviction, to the tune of 15,000 euros for the costs of tendering and to the amount of 699,976.50 euros for the lack of to win.
By a judgment n ° 0903521 of November 19th, 2010, the administrative court of Montpellier rejected its request.
By a judgment n ° 11MA00297 of May 26, 2014, the Administrative Court of Appeal of Marseilles has, on the request of the company "Voyages Guirette", canceled this judgment, terminated the contested contract and rejected the compensatory conclusions of this company.
By a summary appeal and two additional pleadings, registered on 28 July and 28 October 2014 and on 30 April 2015 to the litigation secretariat of the Conseil d'Etat, the mixed transport union Hérault Transport asks the State Council in the last state of his writings:
- to annul this judgment in so far as it pronounced the termination of the contract concluded between the mixed transport union Hérault Transport and the momentary group of companies Pons Laurès;
- settling the case on the merits, to grant his appeal findings.
Considering the other parts of the file;
- the code of 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 Olivier Henrard, public rapporteur;
The word having been given, before and after the conclusions, to the SCP Garreau, Bauer-Violas, Feschotte-Desbois, lawyer of the mixed union of the public transport Hérault Transport;
1. Considering that it appears from the documents in the file submitted to the judges of the fund that the joint public transport union Hérault Transport concluded in 2009 with the group of companies Pons Laurès a market with purchase orders relating to transport services school and regular travelers in the Mont d'Orb - Caroux sector; that the company Voyages Guirette, whose offer had been rejected by a letter of May 13, 2009, filed an appeal with the Administrative Court of Montpellier contesting the validity of this contract and conclusions that the mixed union be condemned to compensate him for the damage resulting from his unlawful eviction; that, by a judgment of May 26, 2014, the Administrative Court of Appeal of Marseilles has, on the one hand, annulled the judgment of November 19, 2010 by which the administrative court of Montpellier had rejected this request, and, on the other hand , pronounced the cancellation of the disputed contract and dismissed the compensatory conclusions of the company Voyages Guirette; that the mixed transport union Herault Transport appealed against this judgment in so far as it pronounced the termination of the contract;
On the rules applicable to the appeal:
2. Considering that irrespective of the actions available to the parties to an administrative contract and the actions brought before the court of ultra vires against the statutory clauses of a contract or before the judge of the interim relief court on the basis of Articles L 551-13 et seq. Of the Administrative Justice Code, any third party to an administrative contract liable to be prejudiced in his interests in a sufficiently direct and certain manner by his execution or his clauses is admissible to form before the judge of the contract a recourse of full jurisdiction contesting the validity of the contract or of some of its non-regulatory clauses which are divisible; that this action before the judge of the contract is also open to the members of the deliberative body of the territorial collectivity or the group of local authorities concerned as well as to the representative of the State in the department in the exercise of the control of legality; that if the representative of the State in the department and the members of the deliberative body of the territorial collectivity or the group of local authorities concerned, taking into account the interests in their charge, can invoke any means in support of the remedy so defined, other third parties may only invoke defects directly related to the injured interest they claim or to such gravity that the judge should raise them ex officio; that the third party acting as competitor evicted from the conclusion of an administrative contract can thus, in support of an appeal contesting the validity of this contract, usefully invoke, besides the defects of public order, that the deficiencies the rules applicable to the execution of this contract which are directly related to his eviction;
3. Considering, however, that Decision No. 358994 of 4 April 2014 of the Conseil d'Etat, ruling in litigation, held that the appeal as defined above does not apply, in the manner described above and regardless of the quality avails himself of the third party, as against the contracts signed as from the reading of this same decision; it follows that the appeal of the company Travel Guirette, formed August 7, 2009 before the Administrative Court of Montpellier, must be assessed against the rules applicable prior to said decision, which allowed any applicant who would have an interest in concluding a administrative contract to invoke any means in support of its action against the contract;
4. Whereas it follows from the foregoing that by retaining, in order to terminate the contested public contract, a plea alleging the illegality of the duration of that framework agreement, without having examined whether that plea could usefully be relied upon by society, having regard to the aggrieved interest which it invoked, the court did not err in law or disregard the extent of its office;
On the other means:
5. Considering, in the first place, that under Article 77 of the Code des Marches Publics: "(...) II. - The duration of contracts with purchase orders can not exceed four years, except in exceptional cases duly justified, in particular by their purpose or by the fact that their execution requires investments that can be amortized over a period of more than four years. / The issue of purchase orders can only occur during the period of validity of the contract. (...) ";
6. The documents in the file submitted to the Court of First Instance show that the contract at issue was spent for a period of six years in order, as the contracting authority claimed, to "take into account the necessary investments, which are the consequences of the qualitative requirements. as regards safety, accessibility and environmental standards, included in the business consultation file "; that in judging, after noting in particular in his decision, on the one hand, that the depreciation period of the vehicles used, retained by the tax administration, was four or five years and, secondly, that the successful tenderer could use vehicles with a maximum duration of ten years, which the qualitative requirements provided for in the consultation documents did not place the mixed trade union in an exceptional case justifying a derogation from the four-year the aforementioned provisions of the Code des Marches Publics, the court did not give the facts thus stated an incorrect legal classification; Nor, in any event, has it erred in law by taking into account the possibilities of re-use or resale of the vehicles necessary for the performance of the contract at issue to assess the terms of their depreciation.
7. Considering, secondly, that if the mixed transport union Hérault Transport submits that the court has disregarded the scope of its office and made an error of law in pronouncing the termination of the contract without ensuring that this measure the Union's writings before the Administrative Court of Appeal that the latter asked the appellant company was liable to vitiate the procedure, not to cancel the contract, having regard precisely to the necessary protection of the general interest, but to limit it to cancel it; that in view of the absence of any evidence to establish that the termination of the contract was itself likely to bring an excessive prejudice to the public interest, it follows that the joint union of public transport Herault Transport is not justified in maintaining that by granting this request, the Marseilles Administrative Court of Appeal would have made an error of law or disregarded the extent of its office;
8. Considering that it follows from all the foregoing that the appeal of the mixed transport union Hérault Transport can only be dismissed;
Article 1: The appeal of the mixed transport union Hérault Transport is dismissed.
Article 2: This decision will be notified to the mixed transport union Hérault Transport, the company Voyages Guirette and the temporary group of companies Pons Laurès.