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Pre-contracted counsel

The law firm Palmier - Brault - Associés is a law firm expert in public procurement law.

Me Sébastien PALMIER has developed a real expertise in pre-contractual summary which made the reputation of the firm. The firm handles an average of 20 pre-contractual summary files per year, both on request, for unsuccessful candidates and defendants, for contracting authorities and contracting entities.

This nationally recognized expertise also provides pragmatic and tailored advice to legally secure contractual procedures and arrangements.

REFERENCES :
Article L 551-1 of the Code of Administrative Justice:
"The chairman of the administrative court, or the magistrate he delegates, may be seized in the event of failure to comply with the disclosure and tendering requirements to which the contracting authorities are subject to administrative contracts for the purpose of executing works, the supply of supplies or the provision of services, with an economic consideration consisting of a price or a right of exploitation, or the delegation of a public service. The judge is seized before the conclusion of the contract. ".

What is the point of pre-contractual relief?

The pre-contractual procedure has been specially adapted to sanction breaches of the publicity and competitive bidding requirements that may affect the award of public contracts, public service contracts, partnership agreements and the contracts mentioned in paragraph 2 of the Article 24 of Ordinance n ° 2005-649 of 6 June 2005 on contracts awarded by certain public or private persons not subject to the Code des Marches Publics.

Who can appeal to the pre-contractual judge?

Article L 551-1 of the Code of Administrative Justice lists the persons with standing before the judge of the pre-contractual summary.

These are mainly people who have an interest in concluding the contract "and who are likely to be harmed by a" failure to comply with the publicity and competitive bidding requirements for public procurement and public service delegation agreements " ".

Jurisprudence has gradually come to define the categories of applicants likely to fulfill this condition:

  • Candidates ousted the procedure of call for competition (EC 19 March 1997, Minister of Agriculture, Fisheries and Food c / St Bull, Req.no. 171140, EC October 16, 2000, Sté Stereau, Req.n ° 213958)
  • Former policyholders in the process of renewal (EC 22 Mar. 2000, Lasaulce, Rec.p.126)
  • All who have a professional specialty conferring an interest in concluding the contract (EC 8 August 2008, Burgundy region, Req., No. 307143). Under certain conditions, subcontractors may also be granted an "interest in the conclusion of the contract" (TA Paris, Ord 8 November 2006, Sté FORSUP CONSEIL, 0615298).

When can the judge of the pre-contractual injunction be seized?

Article L.551-1 of the Code of Administrative Justice relating to pre-contractual injunction provides that the President of the Administrative Tribunal may be seized before the conclusion of the contract.

The administrative case law is indeed constant to consider that the powers conferred on the judge of article L.551-1 can not be exercised after the conclusion of the contract (EC, Section, November 3, 1995, CCI Tarbes and High Pyrenees).

The Public Rapporteur's conclusions in this case state that it is the date of signature by the contracting authority on the act of engagement which puts an end to the powers of the Pre-contractual Pre-Trial Judge:

" The date to be taken into account is that which gives rise to a legal situation whose very constitution prevents the judge from exercising his powers, that is to say the one to which the existence of a synallagmatic contract may be held to be established.

This date appears to us to be, in the context of the Code des Marches Publics, that of the signing of the act of engagementwhich, even before any notification, or the possible approval of the contract, when it is necessary, creates the contractual link and thus puts an end to the powers ".

In case of signature, the judge will pronounce a case not to rule.

PRACTICAL ASPECTS:

Once the contracting authority has made its choice on an offer, it must notify all unsuccessful candidates of the rejection of their offer before signing the contract.

  • For formalized procedures :

Theobligation to respect a minimum period of 16 days or 11 days between the date of dispatch of the notification and the date of signature of the contract

The contracting authority must respect a minimum period between the notification of the rejection and the signature of the contract.

This delay depends on the method of transmission of the rejection mail:

  • He's from 16 days minimum if the rejection mail is sent by AR mail;
  • He's from 11 days minimum if the rejection mail is sent by fax.

The fax must be privileged: the report of transmission of the fax will be worth proof of the notification of the mail of rejection. This method of transmission is much more economical than the transmission by mail AR and is considered by the administrative judge as having the same probative force as the RA (EC 14 December 2009, Sté Lyonnaise des Eaux, No. 328157).

It is during this period, and as long as the contract is not signed, that the unsuccessful candidate can appeal to the judge of the pre-contractual summary.

  • For the adapted procedures:

The absence of an obligation to respect a minimum period of 16 days or 11 days between the date of dispatch of the notification and the date of signature of the contract

The contracting authority has the choice of the following three options:

Option 1:  The contracting authority decides not to inform unsuccessful candidates before signing the contract

  • Information of unsuccessful candidates it's not mandatory for contracts awarded under an adapted procedure.

The contracting authority can therefore sign the contract with the chosen firm and then inform candidates who have been dismissed for rejecting their offers or failing to inform them.

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.

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.

WARNING

If the contracting authority decides to inform the unsuccessful candidates of the rejection of their application or their offer before the signature of the contract by indicating a minimum period which it undertakes to respect before the signature of the contract, the non respect of this deadline is likely to lead to the annulment of the procedure in the context of a contractual referee.

TERMS OF NOTIFICATION OF THE REJECTION COURIER

  • The starting point of the reasonable period of time is the date of receipt by the unsuccessful candidate of the information of the rejection. No form of notification is required: this can be done by registered letter with acknowledgment of receipt, by fax or by e-mail.
  • The objective is, in all cases, to prove that the rejected candidate was informed of the rejection of his offer before the actual signing of the contract.

How can the judge of the pre-contractual injunction be seized?

The applicant may apply to the pre-contractual judge for interim relief:

  • Before taking part in the procedure if, for example, he considers that the consultation documents prevent him from participating or contain discriminatory provisions;
  • During the procedure before the choice of the beneficiary;
  • At the end of the procedure after the choice of the successful but before the signing of the contract to challenge for example the reasons for rejecting his offer

Warning :

Referral to the Pre-contractual Referee is by fax as it is an emergency procedure!

What grounds can be raised before the pre-contractual judge?

On the basis of the provisions of Article L 551 of the Code of Administrative Justice, the judge hearing the application for interim measures sanctions the violation by the public authorities of their obligations with regard to advertising and call for tenders where they have injured or was liable to injure the applicant company (EC 3 October 2008, SMIRGEOMES, Req. No. 305420).

The different categories of breaches that may be invoked before the Pre-contractual Pre-Trial Judge:

  1. Failure to comply with the advertising rules (lack of information in the compulsory sections of the advertisement notice)
  2. Discriminatory requirements in the specifications (reference to specific products held by a single supplier, reference to a trademark .....)
  3. The breach of equality between the candidates during the procedure (during the negotiations in particular or with regard to the information given to candidates)
  4. Challenge of selection criteria for applications or offers
  5. The challenge of the reasons for rejecting applications or tenders (contestation of irregularity of an offer or of a document or information missing from the application or offer)

How to manage the procedure?

If it is not for the interlocutory judge to annul the contract itself, he may suspend the awarding of the contract or the execution of any decision relating thereto.

It may also annul any decision relating to the awarding of the contract or order the person responsible for the failure to comply with his obligations.

The pre-contractual judge has to rule in a twenty days delay from the date of referral. If the pre-contractual summary judge cancels the proceedings, the public body will have to start again and the plaintiff will then have another chance to obtain the contract.

In the event of a pre-contractual summary, the Administrative Tribunal shall immediately inform the contracting authority and send it a copy of the request filed by the applicant.

It is therefore appropriate :

  • To immediately gather all the parts of the proceedings;
  • To analyze the grievances developed by the applicant in his application;
  • Send a copy of the file and the request to his counsel or process the file internally
  Administrative pre-contractual referral Judicial pre-contractual referral
Applicable provisions

Articles L 551-1 to L 551-12 of the CJA.

Articles R 551-1 to R 551-6 of the CJA.

Article L 1441-1 to L 1441-3 of the CPC.

Articles 2 to 10 of the Ordinance n ° 2009-515 of May 7th, 2009.

Articles 2 and 3 of Decree No. 2009-1456 of 27 November 2009.

Jurisdictions

TA territorially competent:

Articles R 312-1 and R 312-11 of the CJA.

IMT territorially competent:

Article D 211-10-2 of the Code of Judicial Organization.

Terms of referral to the judge

Phase 1: Referral of TA by fax.

Phase 2: Regularization of the appeal to the TA by letter AR (4 copies)

Phase 1 :

Request for authorization to summon for an hour to hour or fixed day from the President of the TGI. (Immediate notification of the order to the defendant by fax).

Phase 2:

Assignment issued by Bailiff and then enrolled with the Registry of the TGI (2 copies).

Prior notification requirement

Articles R 551-1 and R 551-2 of the CJA:

Obligation to notify recourse to the contracting authority at the same time as filing the appeal with the TA and in the same way.

YES :

Obligation to have the subpoena delivered to the respondent within the time prescribed by the order of the President of the TGI.

Standing and interest in taking action

Article L 551-10 of the CJA:

  • Have interest in concluding the contract;
  • Suspected of being injured by the alleged breach.

Articles 2 and 5 of the Ordinance n ° 2009-515 of May 7th, 2009:

  • Have interest in concluding the contract;
  • Suspected of being injured by the alleged breach.

Time to act

 

Article L 551-1 of the CJA:

Before the conclusion of the contract.

Articles 2 and 5 of the Ordinance n ° 2009-515 of May 7th, 2009:

Before the conclusion of the contract.

Effects of the judge's referral

Article L 551-4 and L 551-9 of the CJA:

Automatic suspension of the signature of the contract from the time the TA is submitted.

Articles 4 and 8 of Ordinance n ° 2009-515 of May 7, 2009:

Automatic suspension of the signature of the contract from the referral to the TGI.

 

Time to rule

 

Article R 551-5 of the CJA:

20 days from the referral.

Article L 1441-2 of the CPC:

20 days from the referral.

Time limit in which the judge can not rule

Article R 551-5 of the CJA:

  • 16 days from the date of dispatch of the award decision to the economic operators who submitted an application or offer in case of transmission by post
  • 11 days from the date of dispatch of the award decision to economic operators who submitted an application or offer in case of transmission by electronic means.

Article L 1441-2-II of the CPC:

  • 16 days from the date of dispatch of the award decision to the economic operators who submitted an application or offer in case of transmission by post
  • 11 days from the date of dispatch of the award decision to the economic operators who submitted an application or an offer in case of transmission by electronic means

 

 

Powers of the judge

Article L 551-2 of the CJA:

  • Injunction to comply with its advertising and competitive bidding obligations
  • Suspension of the procedure or of any decision relating to the awarding of the contract
  • Cancellation of any decision relating to the awarding of the contract
  • Deletion of clauses or requirements intended to be included in the contract

Attention for contracting entities :

Article L 551-6 of the CJA:

  • Injunction to comply with its publicity obligations and put in competition within a specified period
  • Suspension of any decision relating to the awarding of the contract
  • Provisional penalty

Article 3 of Ordinance n ° 2009-515 of May 7, 2009:

  • Injunction to comply with its advertising and competitive bidding obligations
  • Suspension of the procedure or of any decision relating to the awarding of the contract
  • Cancellation of any decision relating to the awarding of the contract
  • Deletion of clauses or requirements intended to be included in the contract

Attention for contracting entities :

Article 6 of the Ordinance n ° 2009-515 of May 7th, 2009:

  • Injunction to comply with its publicity obligations and put in competition within a specified period
  • Suspension of any decision relating to the awarding of the contract
  • Provisional penalty
Contradictory procedure

YES :

Article R 551-4 of the CJA.

YES :

Article L 1441-1 of the CPC

Remedies

Article R 551-6 of the CJA:

Appeal in cassation within 15 days of notification of the order.

Article L 1441-1 of the CPC:

Appeal in cassation within 15 days of notification of the order.

 

Avocat référé pré-contractuel