In this judgment, the Council of State specifies the cases in which a contract must be regarded as tacitly terminated when, by his behavior, the public person must be regarded as having decided to terminate, unequivocally, the contractual relations.
What you must remember :
Point n ° 1: The termination of a contract results in principle from an express decision of the contracting public entity
The termination of a public contract results in principle from an express decision of the contracting public entity.
As long as the contract is not signed, a candidate evicted or prevented from participating in a publicity and competition procedure can introduce several successive pre-contractual summary proceedings. Only the signing of the contract renders the pre-contractual summary inadmissible.
What you must remember :
Point n ° 1: The possibility of introducing several successive pre-contractual summary proceedings as long as the contract has not been signed
The introduction of a pre-contractual summary is not locked into any particular time limit. Article L 551-1 of the CJA only indicates that the judge must be consulted before the contract is concluded. Thus, the fact that more than two months have elapsed between the notification of the rejection of the offer and the lodging of the request has no effect on the admissibility of the latter since the contract is not yet signed (CE December 14, 2009, municipality of La Roche-sur-Yon, n ° 325830).
TA Versailles, Ord. September 21, 2020, Sté Atelier Jean-Baptiste Chapuis, n °2005666
The pre-contractual summary judge of the Administrative Court of Versailles recalls that no text or principle prohibits a public purchaser from providing for the attribution of an eliminatory technical score once this information has been brought to the attention of the all the candidates. However, in the event of a dispute, the level of elimination may be checked by the judge who will then take into account the specific nature of the services.
The Council of State establishes the right for a public purchaser to terminate an irregular contract
In this judgment, the Council of State specifies the conditions under which a public purchaser can unilaterally terminate a contract tainted with irregularity as well as the terms of compensation of the co-contractor.
Palmier-Brault-Associés is very honored to be at the origin of this jurisprudential advance!
What you must remember :
Point n ° 1: The textual consecration of the unilateral termination provision for reasons of general interest
In its judgment of July 10, 2020, the Council of State first of all recalls the jurisprudential principle according to which under the general rules applicable to administrative contracts, the contracting public entity can always, for a reason of general interest, unilaterally terminate such a contract, subject to the rights to compensation of its co-contracting party (CE 2 May 1985, Distillerie de Magnac-Laval, Lebon, p.246).
In its judgment of June 10, 2020, Sté BONAUD, the Council of State recalls that in application of article 13.4.2 of CCAG-TX, the holder of a public works contract can seize the administrative judge including via a provisional interim payment if, 30 days after the notification of the formal notice to the public purchaser for the establishment of the market statement, the latter still has not produced this account being then specified that the production of said counting during the proceedings does not make the request lose its object
The public purchaser freely determines the weighting of the criteria for judging the offers. However, it cannot legally use a weighting, in particular for the price criterion, which clearly would not allow, having regard to the characteristics of the market, to select the economically most advantageous offer. The control of the judge is however limited to a limited control concerning the relevance of the weighting chosen by the public purchaser.
Interest in contesting the validity of a contract by the regional council of the order of architects
The National Council of Architects and the Regional Council of the Order of Architects have standing to contest the validity of a contract entered into in violation of Law No. 77-2 of the Law of January 3, 1977 on architecture. On the other hand, they have no quality to contest the reasons retained by a public buyer to legally resort to a design-build contract.
Incompetence of the judge of the pre-contractual summary procedure to control the competence of the public purchaser who launches the procedure!
In this case, the Council of State confirms its case-law according to which it is not for the judge of the pre-contractual summary procedure to control the competence of the public purchaser who launches the procedure. The sole circumstance that the procedure for the conclusion of the contract is initiated and conducted by a public person who is not yet competent to sign it does not result in the irregularity of the procedure for the conclusion of the procedure.
The bottom line: The publication of an award notice which mentions both the conclusion of the contract and the terms of its consultation makes it possible to start the period for appealing against the contract, regardless of whether it is does not indicate the date of conclusion of the contract.
An ousted candidate who has submitted an irregular offer may contest the award of the contract to an offer which is also irregular
The Council of State now considers that within the framework of a pre-contractual or contractual summary procedure, the fact that the offer of the ousted competitor is irregular does not prevent it from being able to take advantage of the irregularity of the offer of the company awarded the contract to obtain the cancellation of the procedure or the contract. In this hypothesis, the judge in summary proceedings cannot invoke the irregularity of the offer of the ousted candidate and must examine the regularity of the offer of the successful candidate.