The importance of checking the notifications of "Télérecours" before signing the contract
State Council, 17 October 2016, Minister of Defense, No. 400791
A company which had been ousted because of the impossibility of verifying the validity of its electronic signature had lodged a pre-contractual appeal but had not notified it to the contracting authority, which signed the contract. She then made a contractual referral, which led to the cancellation of the contract. The Conseil d'Etat provides useful information on the relationship between the pre-contractual and contractual summary, the electronic signature and the modulation of the penalty.
Rule n ° 1: The signature of the contract opens the way to the contractual referent, since a pre-contractual summary has been exercised and the contracting authority has been informed
Pursuant to Article L.551-4 of the Code of Administrative Justice, when an applicant exercises a pre-contractual summary, the contract can not be signed by the contracting authority until the notification of the court decision. If he does not do so, the applicant may then exercise a contractual reference, pursuant to Article L.551-14 of the same code. Moreover, Article R.551-1 of the CJA provides that the State representative or the author of the appeal must notify the contracting authority of the pre-contractual summary. The State Council deduces from this that the contracting authority must suspend the signature of the contract, as soon as it is informed of the existence of a pre-contractual summary, either by the communication of the appeal by the registry of the administrative court, or by notification by the representative of the State or the author of the appeal. In the present case, the company which had made a pre-contractual appeal did not notify it to the contracting authority and the latter signed the contract. For the Conseil d'Etat, this absence of notification is not an obstacle to the opening of the contractual summary, since the contracting authority was informed of the pre-contractual summary by the registry of the Administrative Court, via the computer application " telerecours ". The pre-contractual summary was indeed made available via this application at 12:17 and the contract was signed at 17:07!
Rule 2: The irregularity of the electronic signature must be demonstrated
In that case, the contracting authority had rejected the applicant company's offer for failure to sign DC1 and the act of engagement. He had subsequently argued that he had not been able to verify the validity of the electronic signature. However, the discussions did not explain exactly why this validity could not be verified. Furthermore, the applicant company had complied with the procedure provided for by the ministerial decree of 15 June 2012 on the electronic signature in the markets and by the regulation of the consultation. Finally, the investigation does not show that the impossibility for the contracting authority to verify the electronic signature arises from an error made by the applicant company. The President of the Court of First Instance therefore held that the procedure was irregular on that point, but did not place the burden of proof of the irregularity of the signature on the contracting authority. The Conseil d'Etat held that, in view of the circumstances and the results of the investigation, the judge hearing the application for interim measures thus made no error of law.
Rule n ° 3: The judge can modulate the sanction only if there is no breach other than the lack of knowledge of the "stand still" period
The contracting authority had asked the judge, in the alternative, to use its power of modulation by replacing the cancellation of the contract with a mere financial penalty, as authorized by Article L.551-20 of the Code of Justice. when the contract was signed before the expiry of the stand still period. However, the President of the Court of First Instance held in the present case another breach of the applicant company's chances of obtaining the contract and the irregularity of the rejection of his tender. The Conseil d'Etat recalls that, therefore, the judge in chambers could not use his power of modulation.
Advice to buyers: Before signing a contract, always check in the "telerecours" application the notification of a possible pre-contractual referral.
Board of state
ECLI: FR: CECHR: 2016: 400791.20161017
Mentioned at Lebon collection tables
7th - 2nd rooms together
François Lelièvre, rapporteur
Gilles Pellissier, public rapporteur
SCP MATUCHANSKY, POUPOT, VALDELIEVRE, lawyers
Reading of Monday, October 17, 2016
IN THE NAME OF THE FRENCH PEOPLE
Considering the following procedure:
The Tribord company has asked, on the basis of the provisions of Article L. 551-13 of the Code of Administrative Justice, the judge of the Rennes Administrative Court to cancel the contract concluded on April 26, 2016 between the Minister of defense and the company Marc relative to the lot n ° 2 of the market relating to the management of the zones of regrouping waste of the formations of defense of Brest-Lorient. By an order n ° 1602101 of June 3, 2016, the judge of the Rennes Administrative Court dismissed this contract.
1 ° By a summary appeal and a reply, registered on June 20 and September 27, 2016 under No. 400791 to the litigation secretariat of the Conseil d'Etat, the Minister of Defense asks the Conseil d'Etat:
- cancel this order;
- ruling in the main proceedings, dismissing Tribord's application or, in the alternative, imposing on the State a financial penalty in the amount of EUR 1 000 pursuant to the provisions of the Article L. 551-20 of the Code of Administrative Justice.
2 ° By an appeal, registered on June 20, 2016 under n ° 400794 to the litigation secretariat of the Council of State, the Minister of Defense asks the Council of State to suspend the execution of the order of the summary judge of the administrative court of Rennes.
Considering the other parts of the file;
- the code of public contracts;
- the decree of 15 June 2012 on the electronic signature in the markets;
- the code of administrative justice;
After hearing in open session:
- the report of Mr. François Lelièvre, master of petitions,
- the conclusions of Mr Gilles Pellissier, public rapporteur;
The word having been given, before and after the conclusions, to the SCP Matuchansky, Poupot, Valdelièvre, lawyer of the company Tribord;
- Considering that the appeal and the petition for the stay of execution of the Minister of Defense are directed against the same order; whereas it is necessary to join them in order to give a decision;
- Whereas it appears from the statements in the order under appeal that the "Western Purchasing-Finance Platform", located in Brest and under the Ministry of Defense, has launched an open tendering procedure, Official bulletin of the public procurement announcements on 7 January 2016, concerning the provision of different containers, the collection, transport, recovery, disposal of inert, commonplace and hazardous industrial waste (lot 1) and the management of the waste consolidation zones of the Brest-Lorient defense base formations (lot no. 2); that on February 18, 2016, the company Tribord submitted an offer for the lot n ° 2 on the platform of dematerialization "the PLACE"; that, on April 15, 2016, the contracting authority informed the applicant company of the rejection of his offer on the grounds that neither form DC 1 nor the act of engagement was signed; that the 25 April 2016, this one deposited before the administrative court of Rennes a pre-contractual reference on the basis of the article L. 551-1 of the code of administrative justice; that on April 26, 2016, the Minister of Defense signed with the company Marc the contract corresponding to lot n ° 2; that by an order of May 4, 2016, the judge of interim relief took note of the withdrawal of the company Tribord of his precontractual referred; that the company then submitted to the judge of interim relief a request for cancellation of the contract on the basis of Article L. 551-13 code administrative justice; By the order under appeal, the judge hearing the application for interim relief granted this request for annulment.
Admissibility of the contractual summary:
- Considering, on the one hand, that under the terms of Article L. 551-14 of the Code of Administrative Justice, the recourse to a contractual recourse "is not open to the plaintiff who made use of the remedy provided for in Article L. 551-1 or Article L. 551-5 where the contracting authority or the contracting entity has complied with the suspension provided for in Article L. 551-4 or in Article L. 551-9 and complied with the jurisdictional decision on this appeal "; Article L. 551-4 of the same code provides that: "The contract can not be signed from the referral to the administrative court and until notification to the contracting authority of the jurisdictional decision"; that finally, the article R. 551-1 of the same code states that: "The representative of the State or the author of the recourse is obliged to notify his recourse to the contracting authority / This notification must be made at the same time the filing of the appeal and in the same manner / It is deemed to have been completed on the date of its receipt by the contracting authority ";
- Considering that it results from the provisions cited above of articles L. 551-4 and R. 551-1 of the code of administrative justice that it belongs to the contracting authority, when is brought an appeal in pre-contractual injunction directed against the procedure contract, to suspend the signature of this contract from the communication of the appeal by the registry of the administrative court, or from its notification by the representative of the State or the author of the action acting in accordance with the provisions of Article R. 551-1 of the Code of Administrative Justice; that by virtue of the provisions of Article L. 551-14 of the same code, the breach of this obligation of suspension by the contracting authority opens the way of contractual recourse to the applicant who had made use of the pre-contractual summary; that the fact that the author of the appeal has refrained from notifying it to the contracting authority under the conditions provided for by Article R. 551-1 code administrative justice is not such as to render inadmissible the contractual referent brought by the latter after the signature of the contract, if it proves that the contracting authority had been informed of the existence of the pre-contractual summary by the registry of the administrative court;
- Considering, on the other hand, that under Article R. 611-8-2 of the Code of Administrative Justice: "Lawyers, lawyers at the Council of State and the Court of Cassation, the administrations of the State, public-law legal entities and private-law bodies entrusted with the management of a public service may register in the computer application mentioned in Article R. 414-1, under the conditions laid down by the the decree provided for in this article / Any court may send by means of this application, to a party or a representative thus registered, all the communications and notifications provided for in this book for any file and invite him to produce his pleadings and its documents by the same means / The parties or their representative are deemed to have received the communication or notification on the date of first consultation of the document so addressed to them, certified by the acknowledgment of receipt issued by the applicatio n computer, or, failing consultation within eight days from the date of availability of the document in the application, at the end of this period. Unless otherwise requested by them, the parties or their authorized representative shall be alerted to any new communication or notification by an electronic message sent to the address chosen by them. When the judge is required by law or regulation to rule within one month or less, the communication or notification shall be deemed to have been received as soon as it is made available in the application "; Article R. 551-5 of the same Code, applicable to pre-contractual summary proceedings: "The chairman of the administrative court or the magistrate he delegates shall decide within twenty days on the requests submitted to him under Articles L 551-1 and L. 551-5 ";
- Considering that it emerges from the statements of the contested order, undisputed on this point, that the registry of the Administrative Court of Rennes made available to the Minister of Defense on April 26, 2016 at 12:17 the pre-contractual summary filed by the company Starboard, using the computer application "Télérecours" to which is registered its administration; that the Minister signed the contract corresponding to lot # 2 of the disputed market on April 26, 2016 at 17:07; that by judging that it results from the provisions of the last paragraph of Article R. 611-8-2 of the Code of Administrative Justice, applicable to the procedure of pre-contractual recourse since the judge is obliged to rule in a lower time one month, that the communication of this interim order must be deemed to have been received by the Minister from its making available in the application "Télérecours" and deducing that the contracting authority has violated the provisions of Article L. 551 -4 of the Code of Administrative Justice by signing the contract after the receipt of the pre-contractual injunction and that, as a result, the way of the court decision was open to the company Tribord, the judge of interim relief did not taint his order of error of law;
On the other grounds of appeal:
- Considering that according to the article L. 551-18 of the code of administrative justice: "the judge pronounces (...) the nullity of the contract when it was signed before the expiration of the time required after the dispatch of the award decision to economic operators who have submitted an application or offer or during the suspension provided for in Article L. 551-4 or in Article L. 551-9 if, in addition, two conditions are fulfilled : the breach of these obligations deprived the plaintiff of his right to exercise the remedy provided by Articles L. 551-1 and L. 551-5, and the disclosure and competition requirements to which his was misunderstood in a way that affected the chances of the appellant obtaining the contract "; that according to the article L. 551-19 of the same code: "However, in the cases envisaged with the article L. 551-18, the judge can sanction the breach either by the termination of the contract, or by the reduction of its duration, either by a financial penalty imposed on the contracting authority or the contracting entity, if there is an overriding reason in the general interest for the invalidity of the contract. account of an economic interest only if the nullity of the contract entails disproportionate consequences and that the economic interest achieved is not directly linked to the contract, or if the contract relates to a public service delegation or if the nullity of the contract seriously threatens the very existence of a broader defense or security agenda which is essential for the security interests of the state "; that, finally, of the article L. 551-20 of the same code: "In the case where the contract was signed before the expiry of the deadline required after the sending of the decision of attribution to the economic operators having submitted an application or an offer or during the suspension provided for in Article L. 551-4 or Article L. 551-9, the judge may declare the contract void, terminate it, reduce its duration or impose a financial penalty ";
- Whereas under Article 53 (III) of the Code des Marches Publics, applicable to the procurement procedure at issue: "Inappropriate, irregular and unacceptable offers are eliminated (...)"; Article 35 (1) (1) provides: "An irregular bid is an offer which, while providing a response to the need of the contracting authority, is incomplete or does not comply with the requirements set out in the public notice of appeal. to the competition or in the documents of the consultation (...) "; that under Article 11 of the same Code: "For contracts awarded under the formalized procedures, the act of engagement and, where applicable, the specifications are the component documents. 'commitment' means the piece signed by a candidate for a framework agreement or a public contract in which the candidate presents his offer or proposal (...) "; Article 48 (1) provides: "Tenders shall be submitted in the form of the act of engagement laid down in Article 11. The act of commitment for a contract or framework agreement concluded formalized procedure, when the offer is transmitted electronically, is signed electronically under conditions fixed by order of the Minister of the Economy (...) "; Article 56: "II The contracting authority may require the transmission of applications and tenders electronically (...) / IV - In cases where electronic transmission is compulsory and where it is a faculty given to candidates, the contracting authority ensures the confidentiality and security of transactions on a computer network accessible in a non-discriminatory manner, in accordance with procedures set by order of the Minister of the Economy (...) "; that Article 2 of the Ministerial Decree of 15 June 2012 on the electronic signature in the markets provides: "II - The signatory transmits, together with the signed document, the instructions for carrying out the necessary verifications. instructions for use contain at least the following information: / 1 ° The procedure for verifying the validity of the signature; / 2 ° The address of the provider's referencing website by the country of establishment, or default, the public data relating to the signer's certificate, which include, at least, the revocation list and the certificate of the issuing electronic certification service provider (...) ";
- Considering that, before the judge of the interim relief, the Minister of Defense argued, to establish the irregularity of the offer of the company Tribord, that this irregularity was not due to the fact that the offer did not been signed, but because he had not been able to verify the validity of the company's electronic signature; It appears from the statements in the order under appeal that the judge hearing the application for interim relief refused to accept that argument on the grounds that the discussions at the hearing could not explain precisely the technical reasons why the contracting authority could not verify the validity of the electronic signature of the offer, that the company Tribord had respected the procedure provided for by the ministerial decree of 15 June 2012 on the electronic signature in the markets and by the market consultation regulation and that it did not follow from the investigation that the impossibility for the contracting authority to verify the electronic signature resulted from an error made by the applicant company; that by forming his conviction on this point, in the circumstances of the case, in view of the results of the investigation, the judge of interim relief did not impose the burden of proof of the irregularity of the electronic signature on the Minister of Defense and thus committed no error of law; that the Minister can not avail, for the first time in cassation, new elements tending to establish that the malfunction would be attributable to society Tribord;
- Considering that the aforementioned provisions of Article L. 551-20 of the Code of Administrative Justice, allowing the judge to impose a sanction other than the cancellation of the contract and in particular a simple financial penalty, can only be implemented when the breach established only results from the signing of the contract before the expiry of the period required after the award decision has been sent to the economic operators who submitted an application or offer or during the suspension provided for in Article L. 551- 4 or Article L. 551-9 of the same code; that the judge having retained, in addition to the breach drawn by the signature of the contract by the Minister when he was obliged to suspend it because of the reception of the precontractual referral introduced by a candidate, another failure affecting the chances of the company applicant to obtain the contract and alleging the irregularity of the rejection of his tender, he did not err in law by not making use of his power to vary the sanction provided for by the provisions of Article L. 551-20 of the same code;
- Whereas it follows from all the foregoing that the Minister of Defense has no grounds for seeking the annulment of the order under appeal; that the findings for the stay of execution of this order have subsequently become moot;
- Considering that it is appropriate, in the circumstances of the case, to charge the State the payment of a sum of 3 000 euros to the company Tribord under the provisions of Article L. 761 -1 of the code of administrative justice;
Article 1: Appeal No. 400791 by the Minister of Defense is dismissed.
Article 2: There is no need to adjudicate on appeal No. 400794 by the Minister of Defense.
Article 3: The State will pay the sum of 3,000 euros to the company Tribord in application of the provisions of Article L. 761-1 code administrative justice.
Article 4: This decision will be notified to the Minister of Defense and Tribord.
Copy will be sent to Marc.