Adapted procedure contract: the lack of information of unsuccessful candidates is grounds for canceling the contract!
- The information of unsuccessful candidates is mandatory for contracts awarded under a formalized procedure. Article 80 of the Public Contracts 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 by indicating the reasons for their this rejection; secondly, a period of at least 10 days between the date on which the rejection decision is notified to unsuccessful candidates and the date of signature of the contract or frame.
- On the other hand, the information of unsuccessful candidates is not compulsory for contracts awarded under an adapted procedure. In a judgment dated 19 January 2011, in the Grand Port Maritime du Havre, application no. 343435, the Conseil d'Etat considered that, for adapted procedure contracts, no provision or general principle imposes on the contracting authority to inform unsuccessful candidates before signing the contract. 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.
The solution released by the Council of State may surprise for several reasons.
First of all, because it is permissible to question the real lack of a general principle which would dispense a contracting authority from informing unsuccessful candidates before the signature of a contract awarded in accordance with the adapted procedure: the principle of transparency of procedures which has constitutional value 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 communes of the Enclave des Popes, Req. No. 333569). So why should not it also apply downstream of the procedure before the contract is signed? This is a missing link that economic operators and legal practitioners have a hard time understanding. The same misunderstanding had already occurred concerning the abolition of the threshold of € 20,000 excluding tax (CE February 10, 2010, Perez, req.no. 329100). Why 4000 € HT and not 20.000 or 10.000 € HT, go to know .... We sometimes have the impression that the principles are used according to the solution that is sought.
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 summary, no traceability or justification is ultimately required before and after the signing of an adapted procedure contract whereas this type of contract represents the essence of the public order: what to worry about the good use public money and equality among 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 ....
Finally, 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 ultimately will never be informed of the results of the competition or the competition. 'will learn by backdoor ways.
In this judgment, the Administrative Court of Bordeaux has fortunately just taken a position diametrically opposed to that of the Council of State in the name of the principles of freedom of access to public procurement, equal treatment of candidates and transparency procedures. For the Court, the information of unsuccessful candidates is of a substantial nature and its lack of knowledge renders the market void whether it is a formalized procedure or an adapted procedure. The revolution always comes from below ...