Concession of street furniture: pay attention to the respect of the local regulation of advertising!
The City of Paris has launched a procedure for the award of a service concession relating to the operation of public information publicity furniture. After becoming a candidate, the applicant company declined to submit an offer and asked the city to declare the procedure unsuccessful. After the designation of the successful tenderer, that company applied to the administrative court for a pre-contractual injunction for the annulment of the award procedure. In that judgment, the judge hearing the application for interim measures rules on the impact of the breach of the local advertising rules on the regularity of the award procedure.
Rule No. 1: It does not matter how long the pre-contractual summary is introduced as long as it is before the signing of the contract
The city of Paris claimed that the application was inadmissible on the ground that the applicant did not justify any particular circumstance explaining that it had waited until the end of the consultation procedure and the appointment of the successful tenderer to act, whereas the delay the referral of the judge could not exceed three months from the date on which it had renounced to submit an offer. The successful tenderer also objected to the fact that the application was manifestly dilatory.
The administrative court rejects these arguments by recalling the terms of Article L.551-1 of the Code of Administrative Justice, from which it follows that the pre-contractual summary may be formed until the signing of the contract. However, the request was made after the designation of the successful tenderer but before the signing of the concession.
Rule n ° 2: The consultation can not foresee conditions of execution contrary to the local regulation of advertising
The applicant claimed that the award procedure did not comply with the superior rules applicable to the concession, namely the local advertising regulations which the city has adopted. This regulation states that " light advertising, especially screens, is prohibited, except for advertising devices installed on flat roofs ".
The judge hearing the application for interim relief concludes that light advertising is prohibited in Paris, including street furniture, and considers that digital advertising is a bright advertisement.
However, the notice of advertising stated that street furniture " will be able to support the display and the advertising not illuminated or illuminated by projection or transparency, or even numeric as an accessory And the consultation document provided that " in a proportion that can not exceed 15% furniture set up under the concession, the furniture will support the display and digital advertising ".
The judge hearing the application for interim relief concludes that the documents for the consultation provided for the conditions of performance of the contract, which were in part contrary to the advertising regulations applicable in Paris.
Rule 3: Failure to comply with the regulations applicable to the contract constitutes a breach of the publicity and competitive bidding requirements
The applicant further claimed that the lack of knowledge of the local advertising regulation by the documents of the consultation constituted a breach of the obligations of advertising and call for competition. It argued that this contradiction had led it not to submit an offer insofar as it could not do so without risk to legal certainty and the durability of the concession, on the one hand, but could not offer an offer without digital given the expectations of the city in this area, on the other hand.
That argument is regarded as operative by the President of the Court of First Instance who holds that that failure is likely to have prejudiced the applicant company and, consequently, that non-compliance with the regulations applicable to the service concession in question constitutes a failure to comply with the publicity and competition requirements ".
As a result, he cancels the award procedure.