Contractual reference and adapted procedure contract: admissibility yes, cancellation no!
The procedure of the contractual summary allows to sanction the contracts which were concluded without respecting the obligations of advertising and putting in competition. Article L.551-13 of the Code of Administrative Justice (referred administrative contract) and Article L 1441-3 of the Code of Civil Procedure (referred pre-contractual judicial) specify that this remedy is possible only after the conclusion of the contract.
In this case, the Conseil d'Etat considers that an unsuccessful candidate who initiated a pre-contractual injunction after the signature of a contract passed by an adapted procedure while the contracting authority has not made public its intention to conclude the contract under the conditions provided by Article 40-1 of the Code des Marches Publics and has not observed, before signing, a period of at least eleven days between the date of publication of the notice provided for by this article. and the date of conclusion of the contract is receivable to the judge of the contractual referent of a request directed against this contract, even though the contracting authority would have notified him the choice of the successful tenderer and would have respected a deadline before signing the contract .
On the other hand, the satisfaction obtained from the admissibility of the contractual summary is nevertheless short-lived because under the former rules, the annulment of the contract could only be pronounced in the cases provided for by Articles L 551-18 and L 551-20 of the code of administrative justice (referred administrative contractual) and articles 16 and 18 of the ordinance n ° 2009-515 of May 7th, 2009 relating to the procedures of recourse applicable to the contracts of the public order (preliminary precontractual judicial) .
However, there was no specific textual obligation in respect of the adapted procedure which required at once »The candidates ousted the rejection of their offer and thus before the signature of the market.
Consequently, the administrative case-law considered that the applicant could not rely on a "minimum" period before the signature of the contract and that the contractual referent was therefore subject to rejection except in the case of a very rare case where, as mentioned in a pre-contractual summary, in due course but that the public purchaser had not respected the obligation to suspend the signature as soon as the referral to the court or did not comply with the jurisdictional decision rendered on this interim order (EC 14 February 2017, Sté des Eaux de Marseille, Req.No. 403614). Cancellation was therefore excluded.
The contractual referent was therefore a useless gadget open despite all the applicant in the name of the right to a remedy ..... inefficient ......
The new regulation of public procurement could nevertheless change the situation: see on this point the special file devoted to "referred contractual and adapted procedure contracts: the hope of a new efficiency?"
Board of state
Reading of Monday, January 23, 2017
IN THE NAME OF THE FRENCH PEOPLE
Considering the following procedure:
The Decremps BTP company has applied to the judge of the administrative court of Grenoble for an application tending, in the last state of its writings, to the cancellation of the contract concluded on May 23, 2016, according to an adapted procedure, between the intercommunal syndicate. multi-purpose (SIVOM) Morillon-Samoens-Sixte Fer à Cheval-Verchaix and the group Sassi, Benedetti-Guelpa, Socco for the execution of lot n ° 1 of the renovation of the drinking water and sanitation network.
By an order n ° 1602904 of June 27, 2016, the judge of interim relief rejected, on the basis of articles L. 551-13 and following of the code of administrative justice, his request.
By a summary appeal, two supplementary briefs and a reply, registered on July 12th and 27th, August 23rd and October 26th, 2016 at the litigation secretariat of the Conseil d'Etat, the Decremps BTP company asks the Conseil d'Etat to:
1 °) to cancel this order;
2 °) ruling in summary, to grant his conclusions of first instance;
3 °) to charge the SIVOM Morillon-Samoens-Sixte Fer à Cheval-Verchaix the sum of 3 500 euros under Article L. 761-1 code administrative justice.
Considering the other parts of the file;
- the code of public contracts;
- the code of administrative justice;
After hearing in open session:
- the report of Mr Jean Sirinelli, master of requests in extraordinary service,
- the conclusions of Mr Gilles Pellissier, public rapporteur.
The word having been given, before and after the conclusions, to the SCP Delaporte, Briard, lawyer of the company Decremps BTP and the SCP Rocheteau, Uzan-Sarano, lawyer of the SIVOM company Morillon-Samoëns-Sixt Fer à Cheval-Verchaix .
- Considering that under the second paragraph of Article L. 551-14 of the Code of Administrative Justice, the recourse in summary procedure "is not open to the plaintiff who made use of the recourse provided for in Article L. 551- 1 or Article L. 551-5, where the contracting authority or the contracting entity has complied with the suspension provided for in Article L. 551-4 or in Article L. 551-9 and has in accordance with the jurisdictional decision rendered on this appeal "; that under the first paragraph of Article L. 551-15 of the same code, the recourse to interim injunction "can not be exercised with regard to contracts whose execution is not subject to an obligation of publicity prior to the conclusion of the contract, made public its intention to conclude it and observed a period of eleven days thereafter, or with regard to the contracts which are subject to prior public does not apply the obligation to communicate the award decision to unsuccessful candidates when the contracting authority or the contracting entity has completed the same formality "; that under the terms of Article 40-1 of the Code des Marches Publics, then applicable: "To make applicable the provisions of the first paragraph of Article L. 551-15 code administrative justice, the contracting authority publishes in the Journal Official Journal of the European Union, in accordance with the model laid down in the European Commission Regulation laying down standard forms for the publication of notices on public procurement, concerning its intention to conclude a contract or framework agreement exempted from advertising obligations by virtue of the provisions of this Code or passed pursuant to Articles 28 or 30 ";
- Considering that it is clear from the statements in the order under appeal that the SIVOM Morillon-Samoens-Sixt Fer a Cheval-Verchaix launched a consultation in March 2016 with a view to awarding, by an appropriate procedure, a contract for extension and renovation of the water and sanitation network (lot no. 1) and the repair of the trenches carried out under lot 1 (lot 2); that on May 10, 2016, the SIVOM notified to the company Decremps BTP the rejection of its bid on the lot n ° 1 and its decision to award this market to the grouping SBGS; that the contract was signed on the morning of May 23, 2016; that, in the afternoon of the same day, the company Decremps BTP has brought before the Administrative Court of Grenoble a pre-contractual referendum on the basis of Article L. 551-1 code administrative justice; that after having been informed of the signing of the contract by SIVOM's defense, the company requalified its action by way of a contractual reference on 3 June 2016; that, by the order contested, the judge of interim relief has allowed the dismissal raised by the SIVOM and dismissed as inadmissible the contractual referent engaged by the company;
Considering that it follows from the provisions referred to in point 1 that an unsuccessful candidate who has initiated a pre-contractual injunction after the signing of a contract passed by an adapted procedure while the contracting authority has not made public its intention to conclude the contract under the conditions provided by Article 40-1 of the Public Procurement Code and has not observed, before signing, a period of at least eleven days between the date of publication of the notice provided by this article and the date of conclusion of the contract is admissible to refer to the judge of the contractual representative of a request directed against this contract, even though the contracting authority would have notified him the choice of the successful tenderer and would have respected a deadline before signing the contract;
- Considering that it follows from the foregoing that in judging that the contractual referent of the company Decremps BTP was not admissible on the ground that the company had previously presented a pre-contractual summary and had not been deprived of the possibility of the usefully if SIVOM had chosen, but was not required, to notify the choice of the successful group and had complied with the deadline of thirteen days before signing the contract, whereas it was solely for SIVOM to determine whether the contracting authority had made public its intention to conclude the contract in the conditions provided by article 40-1 of the Code des Marches Publics, the judge of the summary of the administrative court of Grenoble made an error of law; that, consequently, and without it being necessary to examine the other means of the appeal, its order must be canceled;
- Considering that, in the circumstances of the case, it is necessary, in application of the provisions of Article L. 821-2 of the Code of Administrative Justice, to settle the case under the interlocutory proceedings initiated;
- Whereas it follows from the investigation that SIVOM has not made public its intention to conclude the contract in question under the conditions laid down, for contracts with an adapted procedure, by Article 40-1 of the Code des Marches Publics; that, under these conditions, and even though the SIVOM notified the applicant company as of May 10, 2016 the choice of the grouping awarded and signed the market only thirteen days later, the contractual referred formed the 3 June 2016 is admissible;
- Considering that according to the article L. 551-18 of the code of administrative justice: "The judge pronounces the nullity of the contract when none of the measures of publicity required for his passing was taken, or when was omitted a publication in the Official Journal of the European Union where such publication is required. / The same annulment is pronounced when the procedures for reopening the competition for the award of contracts based on a framework agreement or a dynamic purchasing system have been infringed. / The judge also declares the contract null and void when it has been signed before the expiry of 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 Article L. 551-9 if, in addition, two conditions are met: the breach of these obligations deprived the applicant of his right to exercise the remedy provided by Articles L. 551-1 and L. 551-5, and the publicity and competitive bidding requirements to which it is subject were misunderstood in a way that affected the chances of the plaintiff to obtain the contract ";
Whereas it follows from those provisions that, 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 contract is signed, the award decision, the cancellation of such a contract, can in principle result only from the finding of the breaches mentioned in the first two paragraphs of Article L. 551-18, that is, that is to say, the absence of the publicity measures required for the awarding of the contract or the lack of knowledge of the procedures for reopening contracts for the award of contracts based on a framework agreement or a dynamic purchasing system; that the judge of the contractual referent must also cancel a contract with adapted procedure, on the basis of the provisions of the third paragraph of Article L. 551-18 code administrative justice, or take one of the other measures mentioned in the Article L. 551-20 in the event that, while an application for a pre-contractual injunction has been lodged, the contracting authority or the contracting entity has not complied with the suspension of signature of the contract provided for in Articles L. 551- 4 or L. 551-9 or did not comply with the jurisdictional decision rendered on this interim decision;
- Considering that in order to request the cancellation of the contract for lot No. 1 of the contract concluded on May 23, 2016 between the SBGS group and SIVOM, the company Decremps BTP claims that the union has improperly appreciated the technical value of its bid and ignored the principles of equal treatment of candidates and transparency of procedures;
Whereas it follows from what has been said in paragraph 8 that the deficiencies relied on by the applicant company do not fall within any of the circumstances in which the judge hearing the application for interim relief may exercise his office; whereas, consequently, its claim that the contract should be annulled can only be rejected;
- Considering that the provisions of Article L. 761-1 of the Code of Administrative Justice preclude the payment of an amount to the SIVOM Morillon-Samoens-Sixt Fer-Cheval-Verchaix who is not not, in this case, the losing party; that in the circumstances of the case, it is appropriate to charge Decremps BTP company the sum of 3,000 euros to be paid to SIVOM under the same provisions;
Article 1: The order of 27 June 2016 of the administrative court of Grenoble is canceled.
Article 2: The application submitted by the company Decremps BTP before the judge of the summary of the administrative court of Grenoble as well as its conclusions presented under Article L. 761-1 code administrative justice are rejected.
Article 3: Decremps BTP company will pay SIVOM Morillon-Samoens-Sixt Fer a Cheval-Verchaix a sum of 3,000 euros under article L. 761-1 code administrative justice.
Article 4: This decision will be notified to the company Decremps BTP and intercommunal syndicate of multiple vocations Morillon-Samoens-Sixte Fer à Cheval-Verchaix.
Summary : An unsuccessful candidate who has lodged a pre-contractual injunction after the signature of a contract awarded under an adapted procedure while the contracting authority has not made public his intention to conclude the contract under the conditions provided for in Article 40-1 of the Public Contracts Code and has not observed, before signing it, a period of at least eleven days between the date of publication of the notice provided for in that article and the date of conclusion of the contract is admissible to submit to the judge of the contractual summary of an application against that contract, even if the contracting authority notified him of the choice of the successful tenderer and complied with a deadline before signing the contract.