CE Opinion of May 11, 2011, Sté REBILLON SCHMIT PREVOT, No. 347002
What deadlines do unsuccessful candidates have to respect in order to request the cancellation or termination of the contract signed with the competitor?
In a judgment dated 16 July 2007, Sté Tropic Travaux Signalisation, the Council of State laid down the rule that an unsuccessful candidate has two months after the publication of the award notice to lodge an appeal challenging the validity of the contract and request cancellation or termination of the contract. It is for the judge hearing such findings, when he finds that there are defects vitiating the validity of the contract, to assess the consequences. It is incumbent upon it, having taken into consideration the nature of any illegality committed, either to pronounce the termination of the contract or to modify some of its clauses, or to decide on the continuation of its execution, possibly subject to regularization measures. by the contracting authority, either to award compensation for compensation for the rights violated, or finally, after verifying whether the cancellation of the contract would not unreasonably prejudice the general interest or the rights of the contracting party, to cancel, totally or partially, if necessary with a delayed effect, the contract.
What timeframes do unsuccessful candidates have to respect in order to seek compensation for the harm suffered?
In order to obtain redress for his injured rights, the ousted competitor has two possibilities:
- Either he decides to present to the judge of the contract indemnity claims, incidental or complementary to his conclusions, at the end of the termination or cancellation of the contract.
- Either he may decide to initiate a separate and unlimited appeal, seeking exclusively compensation for the damage suffered by reason of the illegality of the conclusion of the contract from which he has been dismissed.
In both cases, the presentation of indemnity claims by the ousted competitor is not subject to the deadline of two months following the publication of the notice of award.
What are the formalities to be respected in case of presentation of compensation claims?
The admissibility of the claim for compensation, presented in an ancillary or supplementary form to the conclusions contesting the validity of the contract, or in the context of a purely compensatory remedy, is subject to the intervention of a preliminary indemnity decision.
This prior indemnity decision must be notified to the contracting authority either before submitting an application to the administrative judge or in the course of the proceedings, except in the case of a public works dispute, in which case the applicant is exempted from complying with this formality. .
What are the different litigation strategies offered to unsuccessful candidates?
Unsuccessful candidates have the choice of several contentious strategies:
Strategy n ° 1:
The unsuccessful candidate lodges an appeal against the validity of the contract within two months of the publication of the award notice to request cancellation or termination of the contract and compensation for the damage. that he believes he has suffered as a result of his eviction. In this case, the unsuccessful candidate must notify a prior indemnity request to the contracting authority before referral to the administrative judge or in the course of proceedings.
Strategy n ° 2:
The unsuccessful candidate lodges an appeal against the validity of the contract within two months of the publication of the notice of award to solicit only the cancellation or termination of the contract. In this case, the unsuccessful candidate has the possibility to submit indemnity claims at any time during the proceedings. But if in this case, he must also notify a prior indemnity request to the contracting authority so that these indemnification claims may be admissible.
Strategy n ° 3:
The unsuccessful candidate lodges an appeal against the validity of the contract within a period of two months from the date of publication of the notice of award to solicit only compensation for the damage he considers he has suffered. In this case, the unsuccessful candidate must bring the matter before the judge before the expiry of a four-year period (four-year limitation period) from the event giving rise to the claim (eviction decision). It must of course notify a prior indemnity request to the contracting authority before referral to the administrative judge or in the course of proceedings.