La mention d'un délai de stand still erroné avant la signature du marché vaut absence d'indication de délai

The mention of an incorrect stand-still time before the signing of the contract is worthless.

by gmorales on September 1, 2015 | Category: Pre-contractual & Contractual referral
La mention d'un délai de stand still erroné avant la signature du marché vaut absence d'indication de délai La mention d'un délai de stand still erroné avant la signature du marché vaut absence d'indication de délai

La mention d'un délai de stand still erroné avant la signature du marché vaut absence d'indication de délai CE June 17, 2015, Sté Proxiserve, req.no. 388457
The notification of a rejection letter which mentions an incorrect stand-still time before the signature of the contract is equivalent to the absence of an indication of delay.
In such a case, an unsuccessful candidate remains eligible to bring an interlocutory injunction even if he has previously brought a pre-contractual summary and the contract has been signed after the expiry of the statutory minimum period.

Rule n ° 1: The inadmissibility of the contractual referent introduced after the expiry of the period of stand still mentioned in the rejection letter.

A public contract awarded under a formalized procedure may be legally signed within 16 days in case of notification of the rejection letter by letter AR or of 11 days in case of notification of the rejection letter by electronic means. In such a case, the unsuccessful candidate who has previously lodged a pre-contractual injunction within the period of suspension is inadmissible to bring an interlocutory injunction.

Rule n ° 2: The admissibility of the contractual referent in case of indication in the mail rejection of an incorrect time still.

The notification of a rejection letter which mentions an incorrect stand-still time before the signature of the contract is equivalent to the absence of an indication of delay.

In such a case, an unsuccessful candidate remains eligible to bring an interlocutory injunction even if he has previously lodged a pre-contractual referral even if the contract was in fact signed after the expiry of the statutory minimum period.

In this case, the rejection letter indicated a suspension period of 5 days instead of the minimum period of 16 days referred to in Article 80 of the Public Procurement Code or Article 46 of the Decree of 30 December 2005. The Conseil d'Etat considers that the indication of an incorrect deadline in the rejection mail is worthless of indication of delay.

Observations:

Candidate side ousted : in the context of a formalized procedure, always check whether the rejection letter mentions a 16-day or 11-day suspension period to introduce a pre-contractual summary before the contract is signed. If this is not the case, then it is possible to introduce a pre-contractual summary and then, if necessary, a contractual representative even if the contract has been signed after the expiry of the legal minimum period. If the contracting authority produces a copy of the contract signed in the course of the proceedings, it is sufficient to produce a supplementary memorandum indicating to the judge hearing the application for interim relief that you wish to continue the proceedings in the form of an interlocutory agreement.

Contracting authority side: in the context of a formalized procedure, always check whether the rejection letter mentions a period of suspension in accordance with the minimum deadlines referred to in Article 80 of the Code des Marches Publiques, namely 16 days in the event of notification of the rejection mail by post AR or 11 days in case of notification of the rejection mail by electronic means. What is sanctioned above all the Council of State, it is the indication of an erroneous delay lower than the minimum deadlines envisaged by the regulation. In the event that a longer period is indicated, the contracting authority must also comply with the principle that the contracting authority is bound by the rules which it has freely undertaken to respect.

Board of state
No. 388457
ECLI: FR: CESSR: 2015: 388457.20150617
Mentioned in the tables of Lebon collection
7th / 2nd SSR

Mr Frédéric Dieu, rapporteur
Mr Gilles Pellissier, public rapporteur
SCP PIWNICA, MOLINIE; SCP BARADUC, DUHAMEL, RAMEIX, lawyer (s)

read on wednesday 17 june 2015
FRENCH REPUBLIC
IN THE NAME OF THE FRENCH PEOPLE

Considering the following procedure:

The company Proxiserve asked the judge of the administrative court of Melun, on the basis of Article L. 551-13 code administrative justice, to cancel the contract for the purpose of laying, renting, relief and the maintenance of the water meters of the heritage of the Public Housing Office (OPH) "Marne and Chantereine Habitat".

By an order no. 1500774 of 13 February 2015, the judge of the Melun Administrative Court dismissed his request.

By a summary appeal, a supplementary memorial and a reply, registered on 4 and 19 March and 12 May 2015 at the litigation secretariat of the Conseil d'Etat, the Proxiserve company asks the Conseil d'Etat to:

1 °) to cancel this order;
2 °) ruling in summary, to grant his request;
3 °) to charge the Public Housing Agency (DPO) "Marne and Chantereine Habitat" the payment of the sum of 4 000 euros pursuant to the provisions of Article L. 761-1 code of administrative justice.

Considering the other parts of the file;

Viewed:

- Order No. 2005-649 of 6 June 2005;
- Decree No. 2005-1742 of 30 December 2005;
- the code of administrative justice;

After hearing in open session:

- the report of Mr. Frédéric Dieu, master of petitions,
- the conclusions of Mr Gilles Pellissier, public rapporteur;

The word having been given, before and after the conclusions, to the SCP Piwnica, Molinié, lawyer of the company Proxiserve, and to the SCP Baraduc, Duhamel, Rameix, lawyer of the Public Office of the habitat "Marne and Chantereine Habitat "

1. Considering that the documents in the file submitted to the Judge of the Melun Administrative Court show that, by a public notice of invitation published on 10 September 2014 in the Official Journal of the European Union, the Office public housing (OPH) "Marne and Chantereine Habitat" launched, on the basis of the provisions of Articles 28 and 29 of the Decree of 30 December 2005 setting the rules applicable to contracts awarded by the contracting authorities mentioned in Article 3 of the order of 6 June 2005, an open tender procedure for the award of a contract for the purpose of "laying, letting, relieving and maintaining water meters Heritage Marne and Chantereine Habitat "; that, on January 5th, 2015, the tender commission decided to retain the offer of the company Ocea Smart Building; that the company Proxiserve, whose offer was rejected, applied to the judge of the pre-contractual summary of the administrative court of Melun, on the basis of the provisions of Article L. 551-1 code administrative justice, a request tending to annul the award procedure of this contract; that, having learned in the course of the proceedings that the contract in dispute had been signed by the DPO, the company Proxiserve, renouncing its initial conclusions, asked the judge of the contractual summary of the same court, on the basis of Article L. 551-13 of the administrative justice code, to cancel this contract; that, by the order contested, the latter rejected his request after having considered it inadmissible;

2. Considering, on the one hand, that under the terms of Article L. 551-13 of the Code of Administrative Justice: "The president of the administrative court, or the magistrate he delegates, can be seized, once concluded one of the contracts mentioned in articles L. 551-1 and L. 551-5, of a recourse governed by this section "and that according to the article L. 551-14 of the same code" (...) the appeal governed by this section is not open to the plaintiff who has made use of the remedy provided for in Article L. 551-1 or in Article L. 551-5 when the contracting authority or the contracting entity complied with the suspension provided for in Article L. 551-4 or Article L. 551-9 and complied with the judicial decision rendered on this appeal. "

3. Considering, on the other hand, that pursuant to Article 46 (1) (1) of the Decree of 30 December 2005, as applicable to this dispute: "For contracts and framework agreements awarded in accordance with a formalized procedure other than II of Article 33, the contracting authority, as soon as it has made its choice for an application or an offer, shall notify all the other candidates of the rejection of their application or their offer (...) A period of at least sixteen days is respected between the date of dispatch of the notification provided for in the preceding paragraphs and the date of conclusion of the contract. This period is reduced to at least 11 days in case of electronic transmission of the notification to all interested candidates. / The notification of the award of the contract or framework agreement shall indicate the duration of the period of suspension which the contracting authority must impose, having regard, in particular, to the method of transmission chosen. " that pursuant to these provisions, the contracting authority must indicate to the unsuccessful candidates, in the notification of the rejection of their bid, the date on which or the period beyond which he will sign the contract in question, this date or this deadline before be fixed in accordance with the minimum period of suspension provided for by the same provisions;

4. Considering that the provisions of Article L. 551-14 of the Administrative Justice Code do not have the effect of rendering inadmissible a contractual referent introduced by an ousted competitor who had previously submitted a pre-contractual ignorance of the rejection of its offer and of the signing of the contract, as a result of the contracting authority's failure to comply with the provisions providing for information to competitors who have been displaced on this point, such as those mentioned above, of the Decree of 30 December 2005; Nor can the provisions of Article L. 551-14 have the effect of rendering inadmissible the contractual referent of an ousted competitor who has previously submitted a pre-contractual injunction which, although informed of the rejection of his tender by the contracting authority, was not the period of suspension that the latter imposed between the date of dispatch of the notification of rejection of the offer and the conclusion of the contract, when such information must be given in the notification of rejection ; the same applies when this notification indicates a delay less than the minimum period provided for by the applicable provisions, even though the contract was finally signed in compliance with this minimum period;

5. Considering that it follows from the foregoing that by dismissing Proxiserve's application for interim injunction on the ground that, if the notification of the rejection of his offer indicated a time limit for signature lower than the minimum period set by the I Article 46 of the Decree of 30 December 2005, the contract was signed only after the expiry of this period, the judge of summary of the administrative court of Melun committed an error of law; that as a result and without it being necessary to examine the other grounds of his appeal, the company Proxiserve is justified in requesting the annulment of the order under appeal;

6. Considering that it is necessary, in application of Article L. 821-2 of the Code of Administrative Justice, to settle the case under the interim procedure initiated by the company Proxiserve;

Admissibility of the claims submitted on the basis of Article L. 551-13 of the Code of Administrative Justice:

7. Considering that it follows from the investigation that the mail of 13 January 2015 by which the DPO informed the company Proxiserve of the award of the contract to the company Ocea Smart Building, mentioned a five-day suspension period before the conclusion of the contract, lower than the minimum period of sixteen days imposed by the aforementioned provisions of the Decree of 30 December 2005; that as stated above, the fact that the contract was signed on 3 February 2015, in compliance with the minimum period, can not, in any event, be usefully opposed to the applicant's claims presented on the basis of Article L. 551-13 of the Code of Administrative Justice; that these conclusions, presented in a separate memoir of the one aiming, initially, the cancellation of the procedure on the basis of the article L. 551-1 of this code, are receivable, without being able to oppose them the provisions of the chapter 1 of Title V of Book V of the Administrative Justice Code, according to which applications lodged before the judge hearing the application for interim measures on the basis of Article L. 551-1 are presented and judged according to rules that are distinct from those applicable to requests made on the foundation of Article L. 551-13;

On the claims for cancellation of the contract:

8. Considering that pursuant to the provisions of the third paragraph of Article L. 551-18 of the Code of Administrative Justice, the judge of the contractual recourse declares the nullity of the contract "when it was signed before the expiry of the the deadline after dispatch of the award decision to the economic operators who 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 for by Articles L. 551-1 and L. 551-5, and the publicity and competitive bidding his award is submitted have been misrepresented in a manner affecting the chances of the author of the action to obtain the contract. "

9. Considering that it follows from the investigation, in particular from the bid analysis report, that, in order to note the weighted price criterion at 50 % according to the consultation regulation, the contracting authority distinguished the elements of the tenders. relating to the "overall price", the "investment", the element designating the amount of the installation costs of the new meters charged to the contracting authority, and the "average monthly price paid by the lessee"; whereas the first two elements were assigned, at the time of tender evaluation, a weighting of 10 % and the third of a weighting of 30 %; that by refraining from bringing to the attention of the candidates this decomposition of the weighting of the price criterion, whereas the factors of appreciation relating to the investment and the average monthly price borne by the lessee constituted, in view of their subject and to their importance, sub-criteria comparable to real criteria for judging offers, the OPH "Marne and Chantereine Habitat" failed to meet its advertising and competitive bidding requirements; that it follows from the investigation that although Proxiserve, whose offer was the cheapest, obtained the maximum score for the sub-criterion relating to the average monthly price paid by the tenant, it did not obtain the investment sub-criterion, only a score of seven out of ten; that with regard to the difference of only one point between the overall score awarded to the company Proxiserve and that attributed to the company Ocea Smart Building, with which the contract was concluded, the failure to inform candidates must be regarded as having affected the chances of the company Proxiserve to obtain the contract;

10. Considering that it follows from the above that the company Proxiserve is entitled to request the cancellation of the contract on the basis of the third paragraph of Article L. 551-18 code administrative justice; that none of the elements invoked by the DPO, which are not substantiated, the impossibility of carrying out accruals, the penalization of tenants and the endangerment of the finances of the Office, does not constitute an overriding reason of general interest justifying the pronouncement of one of the alternative measures to the annulment of the contract provided for by Article L. 551-19 of the same Code; whereas, however, in view of the need to ensure the continuity of meter reading and maintenance services during the period required for the launch of a new advertising and call for tender procedure and for the award of the new contract; the general interest in preserving that continuity, the market should be annulled only after the expiry decision;

11. Considering that the provisions of Article L. 761-1 of the Code of Administrative Justice preclude the payment of a sum to be borne by the company Proxiserve, which is not, in the present case the losing party; whereas, on the other hand, under the same provisions, the Public Housing Agency "Marne and Chantereine Habitat" should be paid by Proxiserve the sum of € 4,500 the costs incurred by the latter and not included in the costs for the proceedings before the Conseil d'Etat and the Melun Administrative Court;

DECIDE:
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Article 1: The order of the judge of summary of the administrative court of Melun of February 13, 2015 is canceled.
Article 2: The contract concluded by the Public Housing Agency "Marne and Chantereine Habitat" on February 3, 2015 with the company Ocea Smart Building is canceled. This cancellation will take effect on the expiry of a period of four months from the date of this decision.
Article 3: The Public Housing Agency "Marne and Chantereine Habitat" will pay a sum of 4 500 euros to the company Proxiserve in application of the provisions of Article L. 761-1 code administrative justice.
Article 4: The conclusions presented by the Public Housing Agency "Marne and Chantereine Habitat" in application of the provisions of Article L. 761-1 code administrative justice are rejected.
Article 5: This decision will be notified to the company Proxiserve and the Public Housing Agency "Marne and Chantereine Habitat".

Summary :

The provisions of Article L. 551-14 of the Administrative Justice Code (CJA) do not have the effect of rendering inadmissible a contractual referent introduced by an ousted competitor who had previously submitted a pre-contractual Ignorance of the rejection of its offer and the signing of the contract, as a result of the contracting authority's failure to comply with the provisions providing for information to competitors who have been ousted on this point, such as those of Decree No 2005-1742 of 30 December 2005 These provisions can not have the effect of rendering inadmissible the contractual referee of the ousted competitor who has previously submitted a pre-contractual injunction which, although informed of the rejection of his tender by the contracting authority, does not was not the period of suspension which the latter imposed between the date of dispatch of the notification of the rejection of the offer and the conclusion of the contract, where such information it should be given in the notification of rejection. The same applies when the notification indicates a delay less than the minimum period provided for by the applicable provisions, even though the contract was finally signed in compliance with this minimum period.

The provisions of Article L. 551-14 of the Administrative Justice Code (CJA) do not have the effect of rendering inadmissible a contractual referent introduced by an ousted competitor who had previously submitted a pre-contractual Ignorance of the rejection of its offer and the signing of the contract, as a result of the contracting authority's failure to comply with the provisions providing for information to competitors who have been ousted on this point, such as those of Decree No 2005-1742 of 30 December 2005 These provisions can not have the effect of rendering inadmissible the contractual referee of the ousted competitor who has previously submitted a pre-contractual injunction which, although informed of the rejection of his tender by the contracting authority, does not was not the period of suspension which the latter imposed between the date of dispatch of the notification of the rejection of the offer and the conclusion of the contract, where such information it should be given in the notification of rejection. The same applies when the notification indicates a delay less than the minimum period provided for by the applicable provisions, even though the contract was finally signed in compliance with this minimum period.

[RJ1] Cf. EC, 10 November 2010, National public establishment of agricultural and sea products (France Agrimer), n ° 340944, T. p. 858.,, [RJ2] Cf. EC, 24 June 2011, Public Office for Interdepartmental Housing of Essonne, Val d'Oise and Yvelines and society Seni, No. 346665 346746, T. p. 1023.