Reasonable time and information of the evicted candidates in the Mapa
Administrative Court of Versailles, December 20, 2013 req. n ° 0906065
After a suitable procedure, an OPHLM notified a rejection letter to the candidate whose offer was not accepted on May 5th by fax and then signed the contract on May 12th. The applicant claimed that he did not have the material time to exercise a pre-contractual injunction and therefore appealed to the Administrative Court on the merits in the context of an action for annulment "Tropic Travaux". The Administrative Court held that Article 80 of the Code des Marches Publics which obliges the contracting authority to respect a period of suspension applies only to formalized procedures but that the "contracting authority can not, without infringing the guarantee. substantial that constitutes the faculty to seize the judge of the pre-contractual recourse (...) proceed to the signature of the contract without respecting a reasonable time (...) in this case seven days separated the sending of the fax and the signature of the market (... ) such a delay, even though it included a weekend and a public holiday, reasonably guaranteed the applicant company the possibility of filing a pre-contractual injunction ".
Rule n ° 1:
Article 80 of the Code des Marches Publics which sets a suspension period of 16 days (in the case of sending by letter) or 11 days (in the case of sending by fax or e-mail) does not apply to contracts passed according to a suitable procedure.
Rule n ° 2:
Regarding MAPA and contrary to the position of the Council of State (CE 19 January 2011, Grand Port Maritime Le Havre), more and more courts of the merits (Administrative Courts of Appeal and Administrative Courts) consider that a " reasonable time "must be respected between the sending of the rejection letter and the signature of the contract in order to allow the candidates whose offer is rejected to form a pre-contractual summary.
Rule n ° 3:
This "reasonable time" is appreciated in concreto according to the circumstances: period, presence of weekends, holidays, amount of the market, etc ... 7 days was considered as a reasonable delay in spite of a weekend and a holiday included in the judgment of the Administrative Court of Versailles of 20 December 2013.
Rule n ° 4:
In terms of MAPA, caution must encourage buyers to respect a minimum delay between the sending of the rejection letter and the signing of the contract in order to prevent the competent Administrative Court from finding an irregularity and censoring the procurement procedure.