Urban furniture contract: confirmation of the qualification of service concession!
In this case won by the Cabinet Palmier-Brault Associés on behalf of the company Philippe Védiaud Publicité, the Administrative Court of Amiens confirms the solution made by the Council of State in its judgment of May 25, 2018, Sté Philippe Védiaud Publicité, 416825, according to which the remuneration of the owner of a street furniture contract via the sole collection of advertising revenues is sufficient to qualify a service concession contract.
Lesson 1: A street furniture contract that does not include any operating risk compensation mechanism is a service concession
A contract for the installation, operation, maintenance and upkeep of urban furniture which provides that the policyholder provides these services free of charge in return for the collection of advertising revenue from the sale of advertisers is a service concession if it does not contain any stipulation providing for the payment of a price to its holder covering the investments or eliminating any real risk of exploitation.
For the Administrative Court of Amiens, the remuneration of the contract by the only advertising revenue from the exploitation of street furniture makes it possible to consider that the economic operator bears a significant risk when it is exposed to hazards of any kind. which may affect the volume and value of demand for street furniture by advertisers in the territory of the municipality, without any stipulation of the contract provides for the assumption, total or partial, by the municipality of losses that could result.
The contract provided that additional services related to the possible installation of additional furniture during the performance of the contract would be remunerated in the form of a price. That being so, the Court notes that those services are ancillary in nature and in any event lower than the value of the services which are the subject of the concession.
Teaching n ° 2: The means drawn from the ignorance of the regulation of the public markets become inoperative
The Administrative Court of Amiens takes the opportunity to recall that due to the requalification of the contract in service concession, all the means drawn from the ignorance of the regulation of the public markets become inoperative.
September 13, 2018
- By a public notice of competition sent to the publication on May 23, 2016, the municipality of Beauvais launched an open tendering procedure with a view to concluding a 15-year contract relating to the supply, installation, operation, maintenance and upkeep of advertising and non-advertising street furniture. The company JCDecaux, candidate for the award of this contract, was informed of the rejection of its offer by a letter of July 12, 2016. The municipality has concluded the contract with the company Philippe Védiaud Publicité by an act of commitment signed on 26 July 2016. The company JCDecaux asks the court, on the one hand, to cancel this contract or, failing that, to terminate it and, on the other hand, to condemn the commune of Beauvais to the payment of a sum in compensation of the prejudice resulting from the loss of a serious chance of winning the contract.
On the challenge of the validity of the contract:
- Regardless of the actions available to the parties to an administrative contract and the actions brought before the judge of the excess of power against the statutory clauses of a contract or before the judge of the contractual representative on the basis of Articles L. 551-13 and Code of Administrative Justice, any third party to an administrative contract liable to be prejudiced in his interests in a sufficiently direct and certain manner by its execution or its clauses is admissible to form before the judge of the contract an appeal of unlimited jurisdiction contesting the validity contract or some of its non-statutory clauses that are divisible. This action before the judge of the contract is also open to the members of the deliberative body of the local authority or group of local authorities concerned as well as the representative of the State in the department in the exercise of the control of legality. If the representative of the State in the department and the members of the deliberative body of the local authority or group of local authorities concerned,-In the light of the interests entrusted to them, they may invoke any plea in support of the remedy so defined, the other third parties may plead only vices directly related to the wronged interest they claim or those of a gravity such that the judge should raise them automatically. A third party acting as a competitor who has been excluded from the conclusion of an administrative contravention can not, in support of an appeal contesting the validity of the contract, usefully claim, in addition to the defects of public order, that rules applicable to the execution of this contract which are directly related to his eviction.
With regard to the qualification of the contract:
- According to Article 5 of the Ordinance of 29 January 2016 on Concession Contracts: " Concession contracts are contracts concluded in writing, whereby one or more several licensing authorities subject to this Order entrust the performance of works or the management of a service to one or more economic operators, to whom a risk related to the operation of the work or service is transferred, in return for the right to operate the work or service which is the subject of the contract, that is to say, of this right with a price. The amount of risk transferred to the dealer implies real exposure to the vagaries of the market, so that any potential loss borne by the dealer must not be purely nominal or negligible. The concessionaire assumes the operating risk when, under normal operating conditions, there is no assurance of amortizing the investments or costs that it has incurred related to the operation of the structure or service ". According to Article 21 of the same Ordinance: When the granting authorities decide to conclude a single contract designed to meet both the needs of this prescriptions and requirements that do not fall within one or more activities, none of which constitutes a network operator activity, or exclusively one or more network operator activities, the provisions of Article 22 apply ./.../ ". And according to Article 22 of this order : " When the contract contains elements objectively inseparable and covers either one or more activities, none of which a network operator activity, either exclusively one or more operator activities of network, it is subject to the provisions applicable to its main purpose. Where the contract relates to services which fall under both the service concession contract and the public supply contracts, its main purpose shall be determined according to the highest estimated value of these respective services or supplies. "
- It follows from the investigation that the contract at issue is for the supply, installation, operation, maintenance and upkeep of street furniture intended in particular for municipal information on the territory of the municipality of Beauvais. The stipulations of Article 9 of the special administrative clauses provide that the holder is remunerated by the collection of revenue from the publicity for street furniture and pays the municipality a fee, the amount of which is determined by his offer. In addition, the holder is exposed to hazards of any kind that may affect the volume and value of the demand for street furniture by advertisers in the territory of the municipality and no stipulation of the contract provides for the assumption of responsibility , in whole or in part, by the municipality any losses that may result from the exploitation. If it appears from the provisions of article 9 of the special administrative clauses that additional services relating to the installation of bus shelters or additional panels, the movement of equipment and the printing and installation of additional posters , are subject to a list of unit prices, these services, which relate to equipment, subject of the contract, are inseparable, are of an ancillary nature and, as regards supplies, their estimated value is less than that of services subject to the concession. It follows that this contract constitutes a concession contract subject to the provisions of the ordinance of 29 January 2016 on concession contracts and the decree of February 1, 2016 relating to concessions.
As regards the pleas raised by the applicant company:
- First, the plea alleging that the municipality of Beauvais made a manifest error of assessment by attributing an identical note to the offer of the company JCDecaux France and that of the company Philippe Védiaud Publicité on the criteria relating to the technical quality of the services and the maintenance and maintenance procedures are not accompanied by details enabling them to be assessed.
- Secondly, it follows from paragraph 4 that the pleas based on the irregular composition of the tendering commission, the breach of the provisions of Article 62 of the Decree of 25 March procurement, the lack of knowledge of Articles 53 of the Ordinance of 23 July 2015 on public procurement and 60 of the Decree of 25 March 2016 on public procurement, the lack of knowledge of Article 45 of the Ordinance of 23 July 2015 on public procurement and Articles 51 and 55 of the decree of 25 March 2016 on public procurement, the breach of Article 99 of the decree of 25 March 2016 on public procurement must be rejected as inoperative.
- It follows from the foregoing that the JCDecaux France's claim for annulment or, failing that, the termination of the contract concluded between the municipality of Beauvais and the company Philippe Védiaud Publicité must be rejected.
On the compensation claims:
- Since JCDecaux France was not unlawfully ousted from the award procedure of the contract in dispute, the compensation claims of that company seeking compensation for the damage which would have resulted therefrom for it must be rejected.
The conclusions submitted on the basis of the provisions of Article L. 761-1 of the Code of Administrative Justice:
- These provisions prevent the cost to the municipality of Beauvais, which is not the losing party, of the sum claimed by JCDecaux France in respect of the costs incurred and not included in the costs. Moreover, in the circumstances of this case, it is not appropriate to grant the conclusions submitted on the basis of the provisions of Article L. 7611 of the Code of Administrative Justice by the municipality of Beauvais, which does not justify not have incurred fees. On the other hand, it is appropriate to charge JCDecaux France a sum of 1,500 cures to be paid to Philippe Védiaud Publicité on the basis of these provisions.
Article I: The request of the company JCDecaux France is rejected.
Article 2: The conclusions of the commune of Beauvais presented on the basis of Article L. 761-1 code administrative justice are rejected.
Article 3 The company JCDecaux France will pay the company Philippe Védiaud Publicité a sum of 1 500 euros on the basis of Article L. 761-1 code administrative justice.