Pre-contractual & Contractual referral
The pre-contractual procedure referred to in Article L 551-1 of the Administrative Justice Code makes it possible to sanction breaches of the publicity and competition requirements that may affect the award of public contracts, public service delegations, partnership agreements and all the contracts subject to the order n ° 2015-899 of 23 July 2015 relative to the public markets and to the ordinance n ° 2016-65 of 29 January 2016 relative to the concession contracts.
Failure to comply with the obligation laid down in Article R 551-1 of the Administrative Justice Code renders the pre-contractual summary inadmissible?
Article R 551-1 of the Code of Administrative Justice states that the author of a pre-contractual injunction is obliged to notify his recourse to the contracting authority at the same time as filing the appeal before the Administrative Tribunal and under the same conditions. Numerous pre-contractual summary orders have made divergent solutions. In a judgment dated November 10, 2010, Minister of Defense, No. 341133, the Conseil d'Etat decided the debate by considering that these provisions, which are provided in the interest of the author of the summary proceedings to prevent the contested market from being prematurely signed by the contracting authority, which has remained unaware of the lodging of an appeal, is not time-barred for the inadmissibility of the appeal.
In a judgment dated November 10, 2010, Minister of Defense, No. 341133, the Conseil d'Etat provides useful information on this delicate issue which is repeatedly raised by the contracting authorities. The administrative court considers that a company in receivership is not receivable to bid on a contract whose execution extends beyond the period of observation allowed by the judgment authorizing it to continue its activity. Two hypotheses must therefore be distinguished: either the duration of execution of the contract is greater than the observation period is in this case, the application of the company must be rejected; or it is inferior and in this case its candidacy can not be dismissed in the name of the principle of freedom of access to the public order and the equality between the candidates.
Pre-contractual referral: how can an applicant be wronged by the irregular admission of an application at any stage of the procedure?
A recent order of the judge of the pre-contractual summary of the Administrative Court of Grenoble of November 5th, 2010 specifies the conditions of access to the public order of the newly created companies and gives an unprecedented illustration of the jurisprudence "SMIRGEOMES" by admitting that a candidate ousted can be harmed by the irregular admission of a candidature at all stages of the procedure.
A new illustration of the "Smirgeomes" case law: How to claim an injury at any stage of the procedure.
The Office of the Pre-contractual Pre-Trial Judge as evidenced by the SMIRGEOMES judgment is characterized by a reduction of the purely objective control previously performed on the alleged defects (EC 3 October 2008, SMIRGEOMES, Req. No. 305420). The Council of State now requires that the irregularity is likely to have harmed or threatened the company, albeit indirectly by benefiting a competing company. The sanction is no longer mechanical and the cancellation of the procedure is no longer automatic. It is now a question of no longer allowing an applicant to invoke a breach that is insusceptible to prejudice him, taking into account the scope of the breach, but also the moment when it was committed. In other words, any irregularity can no longer be raised at any point in the proceedings. Thus, an unsuccessful competitor whose candidacy has been admitted is no longer eligible to criticize the conditions for the admission of candidatures (CE 21 May 2010, Commune de Bordeaux, Req. No. 334845). In the opposite direction, the company whose application has been rejected for any reason whatsoever is not likely to be injured by a breach which is at a later stage of the procedure. In the same way, an ousted competitor is not likely to have been harmed by the irregular admission of an offer if it is not finally accepted (EC 24 October 2008, Syndicat intercommunal d'eau et d sanitation of Mayotte, Req. No. 300034).