Information of unsuccessful candidates
The information of unsuccessful candidates is mandatory for contracts awarded under a formalized procedure.
I-1 / With regard to contracts subject to the Public Procurement Code
Article 80 of the Public Procurement Code states that for contracts awarded under one of the formalized procedures, the contracting authority must, on the one hand, inform the unsuccessful candidates of the rejection of their application or their offer and indicate the reasons for this rejection. ; on the other hand, to respect a deadline between the date on which the rejection decision is notified to unsuccessful candidates and the date of signature of the 16-day contract or framework agreement if the Notification is by AR mail and 11 days if the notification is done electronically.
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 subject to Order No. 2005-649 of 6 June 2005 made through a formalized procedure.
II / Information of unsuccessful candidates for contracts awarded under an adapted procedure.
I-1 / The position of the Council of State
In a judgment dated 19 January 2011, the Grand Port Maritime du Le Havre, the Conseil d'Etat considered that for contracts awarded under an adapted procedure, no provision or general principle requires the contracting authority to inform the candidates who were ousted 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 have submitted an offer, before the signature of the contract, the award decision ".
In other words, the contracting authority may sign the contract with the successful firm and then inform the unsuccessful candidates of the rejection of their tenders.
II-2 / The position of the Bordeaux and Marseille Administrative Court of Appeal
In a judgment of June 7, 2011, Collective Association of Citizens of Breuil-Coiffault, the Administrative Court of Bordeaux decided to adopt a position diametrically opposed to that of the State Council in the name of the principles of freedom of access to the order public, equal treatment of candidates and transparency of procedures affirmed by Article 1 of the Code des Marches Publics (equivalent to Article 6 of the Ordinance of 6 June 2005).
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 provided for by the aforementioned provisions of Article 26 of the Code des Marches Publics "(CAA Bordeaux 7 June 2011, Collective Association of Citizens Breuil-Coiffault, req.n ° 09BX02775)
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. (...) "; that in this respect, it is particularly the responsibility of the person responsible for the market to inform candidates who have been ousted of the rejection of their application or their offer in order to allow interested parties, possibly, to contest the rejection which is opposed to them "(CAA Marseille , December 19, 2011, Hexagone 2000, req. No. 09MA02011).
III - 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.
The constitutional principle of procedural transparency applies well for these markets upstream of the procedure at the advertising stage (EC January 30, 2009 ANPE, n ° 290236- CE 24 February 2010, Community of 'Enclave of the Popes, Req.no. 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.
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 procedure-adapted contract, whereas this type of contract represents the essence of the public order: what 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 dark coat ...
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 truly allows the claimant's case to be heard fairly within a reasonable and effective time.