Public Procurement: Possibility of Refusing to Disclose Documents That Could Affect the Fairness of a Trial
An opinion drafted in the perspective of a dispute in order to assess the legal risks and weaknesses of the procedure for awarding an attacked contract may not be disclosed by operation of law
Ruling on the request of several companies that had asked the Ministry of the Interior to provide them with documents on a public contract, the Council of State provides useful clarifications and reminders in the disclosure of documents related to public procurement in the framework of a jurisdictional proceeding initiated.
Rule n ° 1: The administration is only obliged to communicate the existing documents
The requesting companies had requested the communication of a document that should have been sent by the Directorate of Resources and Skills of the National Police (DRCPN) to the Directorate of Civil Liberties and Legal Affairs (DLPAJ). In fact, the circular of 6 January 2012 recommends that, before signing a contract, the sectoral management draft a detailed argument. The administration maintained that this document did not exist and had been replaced by a meeting between the departments concerned, which did not give rise to any minutes. The Administrative Court had therefore found that this request was not applicable and the Conseil d'Etat considers that this judgment is not vitiated by an error of law. In this respect, the public rapporteur states that "the right of access to administrative documents is not conceived as a right to the elaboration of documents" and recalls that Article 2 of Law 78-753 of 17 July 1978, then applicable (now Article L.311-1 of the Code of relations between the public and the administration), provides that the administration is required to communicate only the documents it holds. It also considers that the production of e-mail exchanges between the DRCPN and the DLPAJ made credible the assertion of the administration on the non-existence of the requested document.
Rule 2: An internal opinion on the evaluation of a procurement procedure is not available if the applicant has also initiated proceedings against this contract
The applicant companies also requested an internal notice to the administration, drafted with a view to litigation, in order to assess the legal risks and weaknesses of the procurement procedure concerned. It so happens that those same companies also challenged before the Administrative Court of Paris the award of this contract to a competing company. The Administrative Court rejected this request and the Conseil d'Etat considers that it did not err in law, insofar as the communication of the requested document would have led to the knowledge of the judge ruling on the legality of the market, elements emanating from the other party and likely to plead against its own interests. The Conseil d'Etat thus states that "in the circumstances of this case, the communication of this opinion would be likely to undermine ongoing court proceedings". In doing so, the judge applies Article 6 of Law No. 78-753 of 17 July 1978 (now Article L.311-5 of the Code of relations between the public and the administration) which states that are not communicable administrative documents whose consultation or communication would interfere with the conduct of proceedings before the courts or operations preliminary to such proceedings.
Rule n ° 3: Documents or mentions reflecting the commercial strategy of a company are not communicable
Finally, the applicant companies requested disclosure of the unit price schedule, the estimated quantitative market detail and the final detailed offer of the successful candidate, as well as the full communication of the analysis report of the applications, the final analysis report. offers and the final report, which had been communicated in an obscured version. After having recalled that all the parts of a market must be regarded as communicable, subject to the secrets protected by the law, the Council of State holds that it is right that the administrative court refused the communication of the requested elements by considering that the first three documents reflected the commercial strategy of the company and were therefore covered by industrial and commercial secrecy; similarly, the occultations on the other documents were justified by the preservation of the industrial and commercial secret.
Board of state
N ° 390760
ECLI: FR: CECHR: 2016: 390760.20160928
Mentioned in the tables of Lebon collection
10th - 9th rooms combined
Mr Jacques Reiller, rapporteur
Mrs Aurélie Bretonneau, public rapporteur
SCP GASCHIGNARD, lawyer
read date Wednesday, September 28th, 2016
IN THE NAME OF THE FRENCH PEOPLE
Considering the following procedure:
Armor Development, Bonnetterie d'Armor, Fabrica Espanola de Confecciones SA, Argueyrolles and Noël France have asked the Paris Administrative Court, on the one hand, to annul the implicit decision by which the Minister of Finance rejected its request for the disclosure of documents relating to the procurement, supply and distribution of clothing and accessories of the personnel of the National Police, as well as the explicit decision rejecting this request to date of 6 September 2013, on the other hand, to order the Minister of the Interior to communicate to them the requested documents within two days from the notification of the judgment to intervene, under penalty of 100 euros per day of delay .
By an interlocutory judgment no. 1316138 / 5-1 of 6 November 2014, the Paris Administrative Court ordered the production, within 30 days, by the Minister of the Interior, of the documents listed in points 11 , 12 and 13 of the reasons for this judgment, without these documents being given to the applicant companies.
By a judgment n ° 1316138 / 5-1 of April 2nd, 2015, the administrative court of Paris annulled the decisions by which the minister of the interior refused to communicate to the company Armor Development and others the requested documents concerning the market public procurement, supply and distribution of clothing and accessories of the personnel of the national police, as they refuse to communicate the initial and final offers of global unsuccessful candidates, as well as the decomposition of the overall price and lump sum of the contract finally concluded, enjoined the Minister of the Interior to communicate to the company Armor Development and others these documents subject to the occultation or the disjunction of any mention therein relating to the detail of the offer of price candidates and rejected the remainder of the submissions before it.
By a summary appeal and a supplementary memorandum, registered at the litigation secretariat of the Conseil d'Etat on 4 June and 7 September 2015, Armor Développement et al. Asked the Conseil d'Etat:
- to direct the production of the documents referred to in paragraph V of the supplementary memorandum by the Minister of the Interior, without any communication to the parties;
- to annul the judgment of 2 April 2015 of the Administrative Court of Paris, in so far as it did not grant the right to the entirety of their conclusions;
- to charge the State the sum of 5,000 euros under Article L. 761-1 code administrative justice.
Considering the other documents of the file, in particular the transmission by the administrative court of Paris, on February 3rd, 2016, except contradictory procedure, parts of the litigious market;
- the Constitution, especially its Preamble;
- Law No. 78-753 of 17 July 1978;
- Decree No. 2005-1755 of 30 December 2005;
- the code of administrative justice;
After hearing in open session:
- the report of Jacques Reiller, State Councilor,
- the conclusions of Aurélie Bretonneau, public rapporteur;
The word having been given, before and after the conclusions, to the SCP Gaschignard, lawyer of the companies Armor Development, Bonnetterie of Armor, Fabrica Espanola of confecciones SA, Argueyrolles and Christmas France;
Considering the following:
On the preliminary decision request:
1. It is the responsibility of the administrative court to require the competent authorities to produce all the documents necessary for the settlement of the disputes submitted to it with the sole exception of those who are covered by a secret guaranteed by the law and enforceable against the judge. If the adversarial nature of the proceedings in principle requires disclosure to each of the parties of all the documents produced in the course of the proceedings, this requirement is necessarily excluded in respect of documents whose refusal to disclose is the very object of the proceedings. dispute.
2. When an administrative tribunal, in order to make an informed decision on the claims against the refusal to disclose administrative documents, has ordered, in the first place, the communication outside the adversarial proceedings of the documents in dispute and the judgment it on the merits is the subject of an appeal in cassation, it is up to this court to transmit these documents, which will also not be paid to the contradictory investigation in the context of this proceeding, the Council of State to put him in a position to exercise his cassation control.
3. In the present case, the Paris Administrative Court ordered, by interlocutory judgment of 6 November 2014, the communication, outside the adversary proceedings, of the disputed documents. The judgment of 2 April 2015 was rendered in view of the documents sent to the judges by the Minister of the Interior, in a brief dated 12 December 2014. This judgment is the subject of an appeal in cassation presented by the company Armor Development and others, the Administrative Court of Paris transmitted to the Council of State, under separate cover, these documents which were not given to the adversarial debate. This decision is made in the light of all the documents in the file, including these documents. In these circumstances, the request for the express right is devoid of purpose.
On the claims against the judgment of 2 April 2015:
4. According to Article 1 of the Act of 17 July 1978, as it then reads: "The right of every person to information is specified and guaranteed by the provisions of Chapters I, III and IV of this title. as regards freedom of access to administrative documents / For the purposes of Chapters I, III and IV of this Title, administrative documents shall be considered irrespective of their date, place of storage, form and medium, the documents produced or received, as part of their public service mission, by the State, the local authorities as well as by other persons of public law or persons of private law entrusted with such a mission. in particular, records, reports, studies, minutes, minutes, statistics, directives, instructions, circulars, ministerial notes and replies, correspondence, opinions, forecasts and decisions (...) ". According to Article 2 of the same Law: "Subject to the provisions of Article 6, the authorities referred to in Article 1 shall be obliged to communicate the administrative documents they hold to persons who so request, under the conditions provided for in this Title / The right of communication applies only to completed documents ".
Regarding the detailed argument of the Directorate of Resources and Competences of the National Police (DRCPN):
5. It is for the judge of the excess of power to form his / her conviction on the points at issue in light of the elements of the file filed by the parties. If it can dismiss claims that it considers insufficiently substantiated, it can not require the author of the appeal that the latter provides proof of the facts he advances. Where appropriate, it is up to the judge, before deciding on an application with serious allegations not undeniable by the elements produced by the administration in defense, to implement his general powers of hearing motions and to take all measures to provide him with legal means to enable him to form his conviction, in particular by requiring the competent authority to produce any document capable of verifying the allegations of the applicant.
6. In considering that the request for communication of the detailed argument of the Directorate of Resources and Competences of the National Police on the choices made by the contracting authority addressed to the Directorate of Civil Liberties and Legal Affairs of the Ministry of the was not applicable in the absence of a formal document on the grounds that the Minister had argued, without being usefully contradicted on this point, that this document provided for by a circular of January 6, 2012 of the Secretary General and the director of civil liberties of the Ministry from within, on the modalities of the control of public procurement, had been replaced by a meeting between the directorates concerned, whose minister maintained that it had not been the subject of any minutes, the administrative court did not taint its judgment of error of law.
With regard to the opinion of the Directorate of Civil Liberties and Legal Affairs (DLPAJ):
7. Article 6 of the Act of 17 July 1978, as it then reads, provides that: "I. The administrative documents whose consultation or communication would not affect: (...) proceedings before the courts or operations preliminary to such proceedings, unless authorized by the competent authority (...) ". A communication of document that impinges on the powers and prerogatives of the judge in the conduct of proceedings would undermine the conduct of the proceedings. On the other hand, having regard to the principles governing transparency which the Law of 17 July 1978 imposed on public persons, which does not make the right of access subject to an established interest, the sole circumstance that a communication of an administrative document is of a kind to affect the interests of a party to a proceeding, be it a public person or any other person, does not constitute such an infringement.
8. It is clear from the documents submitted to the judges of the merits that the disputed document is an internal notice to the administration issued by the Directorate of Civil Liberties and Legal Affairs of the Ministry of the Interior to the Directorate of Resources and national police powers. This opinion was drafted with a view to litigation in order to assess the legal risks and weaknesses of the procurement procedure in question. The request for communication of this opinion emanates from companies that challenged before the Administrative Court of Paris the award of the contract to a competing company. Given the identity of parties in the two disputes, the communication of the notice to the applicant companies would bring to the attention of the judge responsible for assessing the legality of the market elements from the defendant and likely to plead against the cause of the latter, thereby undermining the fair conduct of the trial. It follows that in holding that, in the circumstances of the present case, the communication of that notice would be such as to affect existing judicial proceedings, the Paris Administrative Court did not err in law .
With respect to the other documents in dispute:
9. Article 6 (II) of the Law of 17 July 1978, as it then reads, provides that: "The administrative documents may be communicated only to the person concerned: / - the communication of which would undermine the protection privacy, medical secrecy and secrecy in commercial and industrial matters (...) ".
10. Public contracts and related documents, including documents relating to the content of tenders, are administrative documents within the meaning of Article 1 of the Law of 17 July 1978. Seizure of an appeal on the communication of such documents, it is for the trial court to consider whether, by themselves, the information contained in the documents which are requested to be disclosed may, by affecting competition between economic operators, affect the industrial and commercial secret and thus hinder this communication in application of the provisions of II of article 6 of the law of July 17, 1978. With regard to the rules of the public order, must thus be regarded as communicable, subject to the secrets protected by law, all parts of the market. To that extent, if in particular the act of engagement, the overall price of the offer and the services offered by the contractor are in principle communicable, are not, on the other hand, not communicable documents that reflect the commercial strategy of the company operating in a sector of activity and are thus likely to breach the trade secret, such as the unit price list of this company.
11. It follows that, contrary to what is contended, the Court did not vitiate its judgment, which is sufficiently reasoned on that point, of any error in the legal characterization of the applicants as finding that the applicants could not be unit price schedule, the estimated quantitative market detail and the detailed final offer of the successful candidate, after noting that, reflecting the company's business strategy, they were covered by the trade and industry secret. Nor is it apparent from the documents in the file submitted to it that the administrative court tainted its judgment with an error of legal qualification in holding that the concealments made by the Minister of the Interior before giving the applicants the analysis of the applications, the final bid analysis report and the final presentation report were justified by the preservation of industrial and commercial secrecy.
12. It follows from all the foregoing that the applicant companies are unfounded in seeking the annulment of the judgment they are challenging. Their appeal must therefore be dismissed, including the claims submitted under Article L. 761-1 of the Administrative Justice Code.
Article 1: The appeal of Armor Développement et al. Is dismissed.
Article 2: This decision will be notified to Armor Development, Bonnetterie d'Armor, Fabrica Espanola de Confecciones SA, Argueyrolles, Noël France and the Minister of the Interior.