Dossier information des candidats évincés avant la signature du marché

File information of the candidates ousted before the signing of the contract

by gmorales on 15 October 2016 | Category: Folders of the month
Dossier information des candidats évincés avant la signature du marché Dossier information des candidats évincés avant la signature du marché

Dossier information des candidats évincés avant la signature du marché The information of the candidates who were ousted before the signature of the contracts subject to the Code des Marches Publics and the order of 6 June 2005

I- Information of the candidates ousted before the signing of the contract is compulsory for contracts awarded according to a formalized procedure

I-1 With regard to contracts subject to the Public Procurement Code

Article 80 of the Public Procurement Code and the administrative case-law recall that for contracts awarded under one of the formalized procedures, the contracting authority must comply with two obligations: first, it must inform unsuccessful candidates of the rejection of their application or their offer indicating the reasons for the rejection; on the other hand, it must respect a minimum period before the date of signature of the contract. This minimum period running from the date of sending the rejection mail is 16 days if the notification is done by letter AR and 11 days if the notification is made electronically (EC 2 August 2011, Clean Garden 347526).

I-2 With regard to contracts subject to Order No. 2005-649 of 6 June 2005

Article 46-I of Decree No. 2005-1742 of 30 December 2005 provides for the same obligation for contracts awarded under a formal procedure that are subject to Order No. 2005-649 of 6 June 2005 (TGI Marseille, Ord . December 14, 2011, GIE Housing Moderate Rent UNICIL, n ° 11/1248, TGI Nancy, November 2, 2010, SA BANCEL, n ° 10/00525)

II- The information of candidates who have been ousted before the signing of the contract is also recommended for contracts awarded according to an adapted procedure

II-1 The position of the Council of State

The Conseil d'Etat considers that, for contracts awarded according to an adapted procedure, no provision of the Code des Marches Publics or any general principle imposes on the contracting authority to inform unsuccessful candidates before signing the contract: "Whereas: in the case of contracts awarded under an adapted procedure, which are not subject to the obligation for the contracting authority or the contracting entity to notify economic operators who submitted an offer, before the signature of the contract, of the decision to award 'attribution' (CE 19 January 2011, Grand Port Maritime of Le Havre, n ° 343435 - More recently EC 17 July 2013, Department of Guadeloupe, n ° 366864)

In other words, the contracting authority may therefore sign the contract with the successful firm and then inform the unsuccessful candidates of the rejection of their tenders. Such a practice naturally has the effect of rendering inadmissible any pre-contractual referee since the effect of the signing of the contract is to render inadmissible the pre-contractual summary (EC 3 November 1995 Chamber of Commerce and Industry of Tarbes and Hautes Pyréennées, Req. 157304).

II-2 The divergent positions of the Administrative Courts of Appeal of Bordeaux, Marseille, Nantes and Nancy

(I) In a judgment of June 7, 2011, Association Collectif des Citoyens du Breuil-Coiffault, the Administrative Court of Bordeaux decided to adopt a position diametrically opposed to that of the Council of State in the name of the principles of freedom of access to order publicity, equal treatment of candidates and transparency of the procedures affirmed by article 1 of the Public Procurement Code. For the Administrative Court of Bordeaux, the information of unsuccessful candidates is of a substantial nature and its lack of knowledge renders the contract void whether it is a formalized procedure or an adapted procedure:
Considering that the contracts awarded in accordance with the adapted procedure provided for in Articles 26 and 28 of the Public Procurement Code as they are in force from 1 September 2006 to 1 January 2008 are subject, irrespective of their amount, to the general principles laid down in the second paragraph of I of Article 1 of the same Code, according to which "public contracts respect the principles of freedom of access to public procurement, equal treatment of candidates and transparency of procedures (...) respect advertising and competitive bidding requirements (...). "; that if the public body is free, when it decides to use the appropriate procedure, to determine, under the supervision of the administrative judge, the advertising and competitive tendering procedures appropriate to the characteristics of this market, this choice, however, must enable him to respect the general principles mentioned above which apply to him;
Considering that by a new admissible means in question of appeal, the COLLECTIVE ASSOCIATION OF THE CITIZENS OF BREUIL-COIFFAULT, Mr. Marcel ROSSOLIN and Mr. John THORNE maintain that the decision of the mayor of Hanc must be canceled as not having been preceded by information of the ousted candidates; it follows from the documents in the file that the unsuccessful candidates were not informed of the rejection of their candidacy and the identity or corporate name of the two companies selected by the mayor of the municipality of Hanc; this formality, which is based on the principles of freedom of access to public procurement, equal treatment of candidates and transparency of procedures, is substantial and also applicable, including procedure laid down by the aforementioned provisions of Article 26 of the Code des Marches Publics
 »(CAA Bordeaux June 7, 2011, Collective Association of Citizens Breuil-Coiffault, req.n ° 09BX02775)

(Ii) In a judgment of 19 December 2011, Sté Hexagone 2000, the Administrative Court of Marseille decided to adopt the same solution as the Administrative Court of Appeal of Bordeaux always in the name of the principles of freedom of access to the public order, d equal treatment of candidates and transparency of procedures:
Whereas it follows from the aforementioned provisions of Article 80 of the Code des Marches Publics that they are not applicable to contracts awarded under an adapted procedure; that as a result, SOCIETE HEXAGONE 2000 cannot usefully invoke the violation of the aforementioned provisions; that however, contracts awarded under the public procurement code are subject to the principles arising from the requirement of equal access to public procurement, recalled by II of article 1 of this code, according to which: public contracts and the framework agreements subject to this code respect the principles of freedom of access to public procurement, equal treatment of candidates and transparency of procedures. (...) "as such, it is particularly the responsibility of the person responsible for the market to inform the unsuccessful candidates of the rejection of their application or their offer in order to allow interested parties, possibly, to contest the rejection which is theirs opposite »(CAA Marseille 19 December 2011, Sté Hexagone 2000, req.no. 09MA02011).

(Iii) In a judgment of 28 March 2013, SAS Gueble, the Administrative Court of Nantes goes further by stating that the information of the candidates who were ousted before the signing of the contract in an adapted procedure represents a "substantial guarantee" of the principle of the right to an appeal. jurisdictional system which alone is such as to allow referral to the pre-contractual In that case, the Court considered that a period of 12 days from the date of notification of the rejection letter to the date of signature of the contract was a reasonable period:
Considering, thirdly, that contracts awarded under an adapted procedure are not subject to the contracting authority's obligation to notify the economic operators who submitted the tender of the award decision before the signature of the contract; that however the contracting authority cannot, without prejudicing the substantial guarantee which constitutes the faculty to seize the judge of the summary procedure pre-contractual and to exercise, thus, the right to a fast and effective recourse recognized to the interested parties, proceed to the signature of the contract without respecting a reasonable period of time, in particular to allow candidates whose offer has been rejected to incur, if they believe they are justified, the action provided for by Article L. 551-1 of the Code of Justice administrative; that in this case, and while the company Guèble was informed of the rejection of its offer by a letter of January 24, 2011 received the 25, the public establishment, which was not held in this case to respect a period prescribed by regulation, must be considered, by signing on 4 February 2011 the contract with the company Lefèvre, as having respected a reasonable time allowing the applicant the opportunity to form a pre-contractual summary »(CAA Nantes, March 28, 2013, SAS Gueble, req.n ° 11NT03159)

(Iv) In a judgment of 18 November 2013, Community of municipalities of Vesle Montagne de Reims, the Administrative Court of Nancy confirms the obligation for the contracting authority to respect a "reasonable" period between the notification of the rejection of the ousted candidates and the signing of the contract :
Whereas it follows from the aforementioned provisions of Article 80 of the Code des Marches Publics that they are not applicable to contracts awarded in accordance with the adapted procedure provided for in Articles 26 and 28 of the Public Procurement Code; whereas, however, those contracts are subject to the general principles laid down in Article 1 (1) of the same Code, according to which "public contracts [...] subject to this Code respect the principles of freedom of access to public contracts, equal treatment of candidates and transparency of procedures (...) "; that as such, it is incumbent in particular on the person responsible for the contract to inform the ousted candidates of the rejection of their application or their offer and to respect a reasonable period before signing the contract in order to allow interested parties, if necessary, to to challenge the rejection of them; as well as it was said, the company Sade was informed of the rejection of its offer by a mail of November 6, 2009 while the contract was signed by the CCRS on October 29, 2009; that, consequently, the CCVMR is unfounded to maintain that it is wrong that the first judges considered that the circumstance that she informed the company Sade the rejection of its offer after the signature of the market was constitutive d an irregularity liable to affect the validity of the award procedure »(CAA Nancy, November 18, 2013, Community of communes of Vesle Montagne de Reims, req.n ° 12NC01181)

III- Analysis of the jurisprudence of the Council of State

The solution reached by the Council of State is open to criticism for several reasons.
First of all, because it is permissible to question the real lack of a general principle that would dispense a contracting authority from informing unsuccessful candidates before the signature of a contract awarded under the appropriate procedure. On the contrary, since the various administrative courts of appeal base their solutions on the fundamental principles of public order. The constitutional principle of procedural transparency applies well for these markets upstream of the procedure at the advertising stage (EC January 30, 2009 ANPE, req.no. 290236- EC 24 February 2010, Community of communes of the Enclave of the Popes, n ° 333569).

In these circumstances, it is unclear why this principle which applies upstream of the procedure would not apply downstream of the procedure before the signing of the contract to make known the decision that was taken by the contracting authority. This is a missing link that economic operators and legal practitioners have a hard time understanding. The Council of State does not explain its position which goes against the security of the procedures since the lack of information of the candidates ousted before the signature tends to multiply the litigation at the bottom and to create a climate of suspicion about the conditions under which markets are awarded.
Secondly, the solution is also, if not surprising, at least very disappointing because the adapted procedure contracts are not subject to legality control and do not have to be the subject of a presentation report. In other words, no traceability or justification is ultimately required before and after the signing of a contract with an adapted procedure, although this type of contract nevertheless represents the essential of public procurement: something to worry about. the proper use of public money and the equality of candidates, another principle of constitutional value. It is therefore a whole section of the public economy that finds itself adorned with a particularly obscure mantle ....

Moreover, it is simply not respectful of economic operators who have taken the trouble to spend several days to develop an offer, sometimes to participate in negotiations and who in the end will never be informed of the results of the auction or will learn it by way of diversion.
Finally, the lack of information of candidates who have been ousted before the signing of the contract makes it possible to nullify the effectiveness of the pre-contractual summary sought by the legislator and the regulatory power since the entry into force of the law of 30 June emergency procedures since candidates will not be aware of the existence of such remedies and of the time limits for bringing the matter before the competent court. Accordingly, it deprives all unsuccessful candidates of the right to an effective and rapid judicial remedy. Indeed, a remedy is useful and effective if it genuinely allows the applicant's case to be heard fairly within a reasonable time and effectively.

IV Recommendations for contracting authorities

IV-1 Recommendations to contracting authorities subject to the Code des Marches Publics

In order to secure their procurement procedure, the contracting authorities have every interest in not adopting the solution issued by the Council of State, especially if they depend on the territorial jurisdiction of the Bordeaux Administrative Courts of Appeal. , Marseille, Nantes and Nancy.
Option 1:
The contracting authority decides not to inform unsuccessful candidates before signing the contract. This solution seems the most risky with regard to the development of case law: it should therefore be abandoned altogether.
Option 2:
The contracting authority decides to inform unsuccessful candidates before signing the contract and to respect a deadline of 16 or 11 days between the date of dispatch of the notification and the date of signature of the contract. This solution is the most reassuring and makes it possible to be freed from all criticism both in the event of pre-contractual summary proceedings and in the event of appeal to the merits: it should be adopted at least for contracts considered as "strategic" by the contracting authority. .
Option 3:
The contracting authority decides to inform unsuccessful candidates before signing the contract and to respect a "reasonable" period of a few days between the date of dispatch of the notification and the date of signature of the contract. This most common solution.

IV-2 Recommendations to the contracting authorities subject to the order of 6 June 2005

It should be recalled that the advertising and competition rules provided for by the order of June 6, 2005 are interpreted in the same way by the administrative judge and by the judicial judge (Cass. Com, July 10, 2009, Sté GRDF, appeal No. 08-13871, Paris, 25 October 2007, ETDE, No. 05/02543).

In her commentary on a judgment rendered by the Paris Tribunal de Grande Instance on November 5, 1998, the Public Rapporteur to the Council of State, Catherine BERGEAL took advantage of this opportunity to specify that “The rules are identical before the two orders of courts . The civil judge has the same conception of his powers within the framework of the pre-contractual summary procedure as the administrative judge. The civil judge makes the same texts the same interpretation "(BJCP No. 12, 320).

Thus, the rules of publicity and competition resulting from national and Community texts are interpreted in the same way by the administrative judge and by the judicial judge. The same is true of the fundamental principles of the Public Order enumerated by Article 1 of the Code des Marches Publics and by Article 6 of the Ordinance of 6 June 2005 (EC 30 January 2009, ANPE, No. 290236 with the conclusions of the Government Commissioner DACOSTA).
In these circumstances, in order to provide maximum legal certainty for the adapted procedures launched by the contracting authorities or entities which are subject to the order of 6 June 2005, it is advisable to follow the same recommendations as those recommended for public procurement.

File produced by Me Sébastien PALMIER, lawyer at the Paris Bar, holder of the Specialization Certificate in public law