Notice of award: what are the obligatory terms to apply the appeal periods?
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.
Lesson n ° 1: on the interest of publishing an award notice to allow appeal periods to run
As a reminder, article R. 2183-1 of the public procurement code recalls that for contracts of an amount greater than or equal to the thresholds of formalized procedures, the public buyer must publish an award notice within a maximum period thirty days from the signing of the contract at BOAMP and or OJEU for the State and local authorities. This award notice must indicate the main information relating to the award of the contract.
The publication of a notice of award has the advantage of running the time limits for litigation, whether in proceedings for interim measures or in proceedings on the merits, including for contracts which are not in principle subject to this formality. .
In matters of contractual summary proceedings, article R551-7 of the code of administrative justice recalls that the publication of a notice of attribution makes it possible to reduce from six months to one month the period during which the ousted candidates can seize the judge of the contractual summary procedure.
In matters of merits, the publication of an award notice makes it possible to reduce to two months the period during which the ousted candidates can seize the judge of an action in contesting the validity of the contract (CE Ass.16 July 2007 Sté Tropic Travaux Signalisation, n ° 291545, CE Ass. April 4, 2014, Department of Tarn et Garonne, n ° 358994)
The publication of an award notice is also of interest for contracts which are not subject to this formality and in particular contracts with an adapted procedure, the absence of publication of an award notice including the required information, any ousted candidate may appeal against the contract without any time limit, for example 1 year after its signature instead of two months in the case of advertising.
In criminal matters, in a judgment of November 18, 2019, C18 / 03327, the Paris Court of Appeal also considered that the publication of a notice of award is likely to start the limitation periods in matters of offense of grant of unjustified advantage referred to in article 432-14 of the Criminal Code.
Lesson 2: On the mandatory information to start appeal periods
As a reminder, the jurisprudence of the Council of State has been constant since 2007 to consider that the publication of an award notice which does not mention the name of the awardees of the contracts nor the methods of their consultation does not make the appeal periods run. litigation (CE Ass.16 July 2007 Sté Tropic Travaux Signalisation, n ° 291545, CE Ass. April 4, 2014, Department of Tarn et Garonne, n ° 358994).
Failure to comply with these formalities will allow contracts to be contested before the courts without delay conditions (CAA Lyon February 14, 2013, Sté ACS Production, n ° 12LY00305, CAA Lyon 5 May 2011, Sté SMTP, n ° 10LY00134).
In its judgment of June 3, 2020, Avignon hospital center, the Council of State completes its jurisprudence by specifying that the fact that an award notice does not mention the date of conclusion of the contract has no bearing on the point from the start of the time limit for litigation which runs from this publication.
Considering the following:
- The two appeals present for judgment the same questions. They should therefore be joined to rule by the same decision.
- It appears from the documents in the case submitted to the trial judges that, by a notice of public call for competition published on June 25, 2014 in the Official Journal of the European Union and in the Official Bulletin of Public Contract Announcements, the hospital center of 'Avignon has launched an open tender procedure for the allocation of four lots intended to cover its insurance needs for a period of five years. Lot n ° 1 "hospital civil liability" has been awarded to the Hospital Insurance Mutual Company (SHAM). The European Hospital Assistance Office (BEAH), whose offer, ranked second, was rejected, disputed the validity of the public contract concluded by the Avignon hospital center with SHAM and asked for the condemnation of the public health establishment to pay him the sum of 273,750 euros in compensation for the damages resulting from his illegal eviction. By a judgment of October 19, 2017, the administrative court of Nîmes rejected his requests. The Avignon hospital center and SHAM appeal to the French Supreme Court against the judgment of the Marseille administrative court of appeal which, on appeal from the BEAH, quashed this judgment, ordered the termination, as of May 1, 2019, of the disputed market and decided, before saying right, to carry out a contradictory expertise to assess the damage suffered by the BEAH.
On the conclusions contesting the validity of the contract:
Independently of the actions available to the parties to an administrative contract and of the actions opened before the judge of the excess of power against the regulatory clauses of a contract or before the judge of the summary judgment on the basis of articles L. 551-13 and following of the administrative justice code, any third party to an administrative contract likely to be injured in its interests in a sufficiently direct and certain way by its conclusion or its clauses is admissible to form before the judge of the contract an appeal of full jurisdiction contesting the validity of the contract or of some of its non-regulatory clauses which are divisible from it. This remedy must be exercised, including if the contested contract relates to public works, within two months of the completion of the appropriate publicity measures, in particular by means of a notice mentioning both the conclusion of the contract and the terms of its consultation while respecting the secrets protected by law. The fact that the notice does not mention the date of conclusion of the contract has no effect on the starting point of the period for legal proceedings which runs from this publication.
4. As mentioned in the previous point, the publication of a notice mentioning both the conclusion of the contract and the procedures for consulting it while respecting the secrets protected by law allows the time limit for bringing an action against the contract, the fact that the notice would not mention the date of conclusion of the contract is irrelevant to the starting point of the period running from this publication.
Consequently, in ruling, to rule out the dismissal based on the fact that the BEAH's conclusions contesting the validity of the disputed contract, filed on March 12, 2015 at the registry of the Nîmes administrative court, were late, that the "opinions of 'attribution' of the contract, published on 2 December 2014 in the Official Journal of the European Union and in the Official Bulletin of public procurement announcements, in accordance with the provisions of Article 85 of the then applicable public procurement code, appearing today at article R. 2183-1 of the public procurement code, did not constitute an appropriate publicity measure likely to cause the period for litigation to run, on the ground that these publications only mentioned the award of the contract, and not of its conclusion, and mentioned only the coordinates of the market unit of the hospital center, a mention which nevertheless fell under the terms of the consultation of the contract, the administrative court of appeal of Marseille erred in law.
On the compensation claims:
- Under article 3.6.1 of the market consultation regulations: "In accordance with the provisions of the circular of 24 December 2007 on the award of public insurance contracts, any reservations or amendments made by the candidates to the clauses CCAP and CCTP will be assessed with regard to their impact (in particular economic) on the offer as a whole, in order to determine whether they are likely to make the offer irregular: / - reservations without impact or having a limited impact on the quality of the offer will have no impact on the rating; / - the reservations having the effect of lowering the quality of the offer will lead to a reduction in the rating (...); / the reservations rendering the offer unsatisfactory to regard to the needs expressed will result in an outright rejection of the offer deemed to be irregular (...) ". Article 6.2.3 of the same regulations specifies, with regard to criterion No. 3 "nature and extent of the guarantees - quality of the contractual clauses", that: "The possible reservations made by the candidate are of four types. These will come , compared to the CCAP and the CCTP specific to the lot, by deduction of a score of 100 reduced to the maximum score of 30 points, on the basis of: / - accepted: because they do not call into question the extent of the guarantees; most often these are details provided by the insurer; / - medium or high: reserve simultaneously impacting one or more aspects of the technical, financial or legal market, while partially degrading the economic value, noted - 15; / - major: reserve decreasing, or even excluding a guarantee and / or modifying the financial conditions and / or legal certainty in a consequent way leading to a real deterioration of the economic value of this market, noted - 25; / - non-conformity: - 50, see ir admissible for non-conforming reservation ". Finally, under the terms of article 5 of the special technical clauses: "territoriality of the contract: guarantees must be exercised worldwide"
- To estimate that the score attributed to SHAM's offer under criterion 3 should have been penalized by twenty-five points, the appellate judges noted that the financial appendix to the act of relative commitment to variant n ° 1 of its offer included a reservation worded as follows: "the guarantees are extended to the whole world (...) / This extension does not apply to the consequences of medical acts or treatments performed in the United States and in Canada, as well as damage caused by products delivered to these two countries. " By considering that the disputed offer could therefore only be understood as excluding or reducing a guarantee within the meaning of article 6.2 of the market consultation regulations and should therefore be regarded as comprising a "major" reservation within the meaning of these provisions, "regardless of the effective interest of this cover for the establishment", without seeking to ascertain whether this reserve led to a real deterioration in the economic value of the market when it had noted the stipulations of the contract requiring it to carry out this analysis , the Marseille Administrative Court of Appeal committed an error of law.
- It follows from all of the above, and without there being any need to consider the other pleas in appeal, that the judgment under appeal must be set aside.
- The provisions of article L. 761-1 of the administrative justice code prevent the responsibility for the Avignon hospital center and SHAM, which do not have the status of losing party in the present instance, the sum requested by the BEAH under article L. 761-1 of the code of administrative justice. On the other hand, it is necessary, in the circumstances of the case, to charge the BEAH with a sum of 3,000 euros to be paid to each of them under the same provisions.
Article 1: The judgment of January 14, 2019 of the Marseille Administrative Court of Appeal is set aside.
Article 2: The case is referred to the Administrative Court of Appeal of Marseille.
Article 3: The European Hospital Insurance Bureau will pay a sum of 3,000 euros each to the Avignon hospital center and to SHAM under article L. 761-1 of the Code of Administrative Justice. The conclusions presented by the BEAH under the same provisions are rejected.