Public service delegation and irregular candidacy
EC 24 October 2008, Syndicat intercommunal water and wastewater of Mayotte, n ° 300034
The Council of State refuses to cancel a public service delegation procedure if the irregularity found has not had any effect on the successful tender.
In the present case, according to the applicant company, the course of the proceedings had been vitiated by the admission of a company which did not have the required technical, professional and financial capacities. The Conseil d'État considers that "the unlawful admission of a company to negotiate an offer does not necessarily entail an irregularity in the conduct of the procedure, since the offer made by the company is not accepted by the delegating authority ". This judgment is part of the current trend of case law which is to limit the excessive use of pre-contractual summary proceedings.
"Considering that the Veolia Water company supports, on the one hand, that the course of the procedure would have been vitiated by the admission of the company GTA Mayotte to negotiate an offer whereas this company did not present the technical, professional and financial capacities required ; that the unlawful admission of a company to negotiate an offer does not necessarily entail an irregularity in the conduct of the procedure, since the tender submitted by that company is not accepted by the delegating authority; Veolia Water does not demonstrate, in this case, how the admission, assuming irregular, the company GTA to negotiate an offer had an impact on the regularity of the procedure; it follows from the foregoing that the plea must be rejected".