Référé contractuel et marchés à procédure adaptée : l’espoir d’une nouvelle efficacité ?

Contractual reference and adapted procedure contracts: the hope of a new efficiency?

by gmorales on March 13, 2017 | Category: Folders of the month
Référé contractuel et marchés à procédure adaptée : l’espoir d’une nouvelle efficacité ? Référé contractuel et marchés à procédure adaptée : l’espoir d’une nouvelle efficacité ?

Référé contractuel et marchés à procédure adaptée : l’espoir d’une nouvelle efficacité ? 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.

The persons empowered to refer the matter to the interlocutory judge are those who have an interest in concluding the contract and who may be adversely affected by breaches of the advertising and competitive bidding obligations to which these contracts are subject.

1-The different hypotheses of admissibility of the contractual referent in adapted procedure:

For procedures with adapted procedures, the admissibility of the contractual referred person is only possible in three hypotheses (CE 19 January 2011, Grand Port Maritime of Le Havre, n ° 343435, CE 29 June 2012, Sté Chaumeil, req.no. 358353):

  • When the public purchaser did not respect the stand still period that he spontaneously brought to the attention of unsuccessful candidates;
  • When a pre-contractual summary has been lodged in good time and the public purchaser has not complied with the obligation to suspend the signature as soon as the court has been seised or has not complied with the jurisdictional decision rendered on this interlocutory judgment (CE February 14, 2017, Sté des Eaux of Marseille, req.n ° 403614).
  • When the unsuccessful candidate has made a pre-contractual referral since he was unaware of the signature of the contract when the public purchaser did not make public his intention to conclude the contract and did not respect a period of 11 days between publication and the conclusion of the contract, even if the contracting authority notified him of the choice of the successful tenderer and complied with a deadline before signing the contract (CE 23 January 2017, Sté Decremps, req.n ° 401400).

2-Nearly zero efficiency under the old rules:

The contractual representative has always presented very little use for the adapted procedure contracts since even if the appeal is declared admissible, the cancellation of the contract will be pronounced only in the cases provided for by articles L 551-18 and L 551- 20 of the Code of Administrative Justice (referred administrative contract) and Articles 16 and 18 of the ordinance n ° 2009-515 of May 7, 2009 relating to the procedures of recourse applicable to the contracts of the public order (referred precontractual judicial).

Before April 1st, 2016in other words, under the old rules, 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 good time but that the public purchaser had failed to comply with the obligation to suspend the signature as soon as the court was seised or did not comply with the jurisdictional decision rendered on the summary judgment (CE February 14, 2017, Sté des Eaux of Marseille, req.n ° 403614)

Apart from this case, the contractual representative had no chance of succeeding in an adapted procedure so that its usefulness deserved serious consideration. Indeed, what is the point of declaring admissible a remedy if it is from the outset doomed to be rejected? Was this an effective remedy, as the Conseil d'Etat likes to say? Practitioners had long since made their opinions on such a presentation ...

3-Towards a new efficiency under the new regulations?

The Council of State does not hesitate to use his magic wand to make reversals of case law when he considers it appropriate. It is therefore time for him to think a little about the litigants, and not always the administration, to get to work and give some efficiency to this remedy has become obsolete for a whole part of the public order- most important- as soon as the new regulation of the public order gives him the opportunity.

In fact, under the new provisions of Article 99-I of Decree No. 2016-360 of 25 March 2016 on public procurement: 'I. - For public contracts awarded under an adapted procedure, the buyer, as soon as he decides to reject an application or an offer, notify each candidate or tenderer of the rejection of his application or tender " (Exhibit 5).

Article 99-I of Decree No 2016-360 of 25 March 2016 recalls that for contracts awarded under an adapted procedure, the contracting authority must now inform "immediately" candidates who have been ousted as soon as their application or offer is rejected, which takes place before the contract is signed.

This is a new obligation imposed on adapted procedures since the 1st April 2016 and which did not exist under the old regulations, which explains the abundant case law under the old rules which consistently held that in the absence of a specific textual obligation, there was no obligation to prior information of candidates who have been dismissed from the rejection of their offer prior to the signing of the contract in an adapted procedure. This is also the solution that was recalled by the Council of State in its judgment of 23 January 2017 since as indicated by the facts, the consultation was launched in March 2016 and not after the 1st April 2016 (CE 23 January 2017, Sté Decremps BTP, req.no. 401400).

In other words:

  • Before the 1st April 2016, 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.
  • Since the 1st April 2016Article 99-I poses "an obligation to inform immediate Candidates who have been ousted since the rejection of their offer, which always comes before the signing of the contract.

The information must therefore precede the signature of the contract except to render dead letter the new provisions. What is the point of imposing an "immediate information" obligation on candidates who have been removed from an appropriate procedure if it is not sanctioned?

The texts still do not provide for a minimum period of time, which can be explained for the adapted procedures where the competitive tendering procedures are freely defined, but this new "immediate" information obligation seems to exclude any signature of the contract. prior to the prior notification of unsuccessful candidates, when common sense dictates that the decision to reject offers be made before the definitive signature of the contract.

The information of the rejection must be "immediate", at the end of the provisions of article 99-I of the decree, it must now intervene before the signing of the contract.

If this interpretation were to be adopted in the near future by the administrative court, it would render the use of the contractual reference for the adapted procedure contracts effective when the buyer had the bad idea of signing the contract before informing the unsuccessful candidates and did not make public its intention to conclude the contract nor respected a delay of 11 days between this publication and the conclusion of the 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 (CE 23 January 2017, Sté Decremps, cited above).

And this especially as the non-compliance with the provisions of Article 99-I of Decree No. 2016-360 of 25 March 2016 on public procurement, ie the lack of "immediate" information of unsuccessful candidates the rejection of their application or offer, directly undermines the right to an effective judicial remedy of the candidates and therefore constitutes a substantial breach of the rules of advertising and call for competition.

Let us hope, therefore, that this right to an effective judicial remedy of the candidates is not once again sacrificed on the altar of the general interest or, to use an expression in vogue by the administrative justice, in the name of the legal security ....


Board of state
N ° 403614
Reading of Tuesday, February 14, 2017

FRENCH REPUBLIC
IN THE NAME OF THE FRENCH PEOPLE

Considering the following procedure:

The Marseille water company applied to the judge of the administrative court of Marseilles for an application tending, in the last state of its writings, to annulment, on the basis of the provisions of Article L. 551-13 of the code of administrative justice, the contract of delegation of public service for the distribution of drinking water concluded between the commune of Auriol and the company SAUR on July 1, 2016. By an order n ° 1605523 of September 1st, 2016, the judge of the the court dismissed this request.

By a summary appeal, a supplementary memorandum and two briefs, registered on 19 September, 4, 20 and 21 October 2016 at the litigation secretariat of the Conseil d'Etat, the Marseille water company asks the Conseil d'Etat:

1 °) to cancel this order;

2 °) settling the case in summary, to grant his request;

3 °) to put at the charge of the commune of Auriol and the company SAUR the sum of 6 000 euros under article L. 761-1 of the code of administrative justice.

Considering the other parts of the file;

Viewed:

- the general code of local authorities;

- 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 Garreau, Bauer-Violas, Feschotte-Desbois, lawyer of the water company of Marseilles, with the SCP Nicolaÿ, of Lanouvelle, Hannotin, lawyer of the municipality of Auriol and SCP Foussard, Froger, lawyer of the rural and urban development company (SAUR).

Considering the note under deliberation, recorded on February 10th, 2017, presented by the commune of Auriol.

  1. Considering that it emerges from the statements of the order contested that the municipal council of the commune of Auriol approved on Friday July 1, 2016 the attribution of a delegation of the public service of distribution of drinking water to the company SAUR; that the contract was signed the same evening, at the end of the municipal council; that the society of the waters of Marseilles seized on the same day the judge of the summary of the administrative court of Marseilles of a request for cancellation of the procedure of conclusion of the contract; the municipality informed him of the signing of the contract, the company then asked the judge of the interim relief annulment of the contract, on the basis of the provisions of Articles L. 551-13 and L. 551-18 code of justice administrative; that by the order contested of September 1, 2016, against which the company appealed in cassation, the judge of the summary of the administrative court of Marseilles rejected his request;

Admissibility of the contractual summary:

  1. Considering that according to the article L. 551-14 of the code of administrative justice, the recourse in emergency recourse "is not open to the plaintiff having made use of the recourse envisaged with the article L. 551-1 or with 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 Article L. 551-9 and has complied with jurisdictional decision rendered on this appeal "; that under Article L. 551-4 of the same code, the contract "can not be signed from the referral to the administrative court and until notification to the contracting authority of the jurisdictional decision"; that finally Article R. 551-1 of the same code provides that: "The representative of the State or the author of the appeal is required to notify its appeal to the contracting authority. This notification must be made at the same time as the filing of the appeal and in the same manner. / It is deemed to have been fulfilled on the date of its receipt by the contracting authority ";
  1. Whereas it follows from the provisions referred to in paragraph 2 that the obligation to suspend the signature of the contract which applies to the contracting authority when an application for interim relief against the procedure for the award of the contract is lodged runs from the notification to the contracting authority of the appeal by the representative of the State or by its author acting in accordance with the provisions of Article R. 551-1 of the Code of Administrative Justice, or the communication of this appeal by the registry of the administrative court ; if the author of a pre-contractual injunction establishes having notified it to the contracting authority under the conditions laid down in that article, the contracting authority signing the contract after receiving the appeal must be regarded as having failed to comply with the provisions of the Article L. 551-4 of the same code; that in the case of an appeal sent to the competent department of the contracting authority by means of communication making it possible to ensure the transmission of a document in real time, the fact that the notification was made outside the opening hours of the this service has no effect, since the period of suspension is not counting from the actual acknowledgment of the appeal by the contracting authority, but from the receipt of the notification made to it. ;

  1. Considering that as it was recalled in point 1, the municipal council of the commune of Auriol approved on Friday July 1, 2016 the attribution of the contract of delegation of the public service of distribution of drinking water to the company SAUR ; that by judging that while the society of the waters of Marseilles had notified the commune of Auriol before it signed the contract in the evening before the pre-contractual referee which it had filed against this procedure, the commune does not could not be regarded as having been aware of the notification of his appeal by the company since it had been notified to him after the closure of his services at 4.30 pm, and consequently finding that the contract had not been signed during the suspension provided for in Article L. 551-4 of the Code of Administrative Justice, the judge of the Administrative Court of Marseille made an error of law;
  1. Whereas it follows from the foregoing, and without it being necessary to examine the other grounds of appeal, that the Marseille Water Company is entitled to seek the annulment of the order under appeal;
  1. 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;
  1. Considering that, according to Article L. 551-14 of the Code of Administrative Justice: "The persons entitled to act are those who have an interest in concluding the contract and who are likely to be harmed by breaches of obligations advertising and competitive bidding to which these contracts are subject, as well as the representative of the State in the case of contracts awarded by a local authority or a local public institution. / However, the recourse governed by this section is not open to the plaintiff who made use of the recourse 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 "; that under the terms of the article L. 551-15 of the same code: "The recourse governed by this section can not be exerted nor with regard to the contracts whose handing is not subjected to a preliminary obligation of advertisement where the contracting authority or the contracting entity has, before the conclusion of the contract, made public its intention to conclude it and has observed a period of eleven days after that publication, or in respect of the prior-advertised contracts to which no does not apply the obligation to communicate the award decision to unsuccessful candidates where the contracting authority or the contracting entity has fulfilled the same formality (...) ";
  1. Considering that it follows from these provisions that only an application against a public service delegation contract, which is not subject to the obligation to communicate the award decision, is admissible to the judge hearing the application for interim relief. unsuccessful candidates, in addition to the prefect, candidates who have not initiated a pre-contractual referral, when the delegating authority has not made public its intention to conclude the contract under the conditions provided for in Article R. 1411- 2-1 of the general code of local authorities 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, as well as those who have initiated a pre-contractual injunction, where the delegating authority has not complied with the obligation to suspend the signature of the contract provided for in Articles L. 551-4 or L. 551-9 of the Administrative Justice Code, or s is not consistent with the jurisdictional decision rendered on this interim decision; that it follows from the investigation that the society of the waters of Marseilles has notified to the competent service of the municipality its pre-contractual reference by an electronic message sent Friday, July 1 at 19H38 to the electronic address indicated by the regulation of the consultation; it follows from what was said in point 3 that the municipality could therefore no longer sign the contract in the evening of 1 July as it did, even though it had indicated to the candidates, in the regulation the consultation, that his services were closed at 16H30 on Friday; that the society of the waters of Marseilles is consequently admissible to seize the judge of the contractual referent of a request tending to the cancellation of the contract of delegation of public service concluded between the commune of Auriol and the SAUR; that from then on, the end of non-receipt raised by the commune of Auriol must be dismissed;

On the merits of the contractual summary:

  1. 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 judge also declares the contract null and void when it has been signed before the expiry of the deadline after the award decision has been sent 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 for by the Articles L. 551-1 and L. 551-5, and the publicity and competitive bidding requirements to which it is subject have been disregarded in a way that affects the chances of the person making the claim to obtain the contract " ; that under the terms of the article L. 551-20 of this code: "in the case where the contract was signed ... during the suspension envisaged in the article L. 551-4 or in the article L. 551-9, the judge may declare the contract void, terminate it, reduce its duration or impose a financial penalty ";

As regards the claim for the annulment of the contract on the basis of Article L. 551-18 of the Administrative Justice Code:

  1. Whereas the cases in which the judge hearing the application for interim relief may annul a contract are exhaustively listed in the three paragraphs of Article L. 551-18 of the Code of Administrative Justice; with regard to public service delegation contracts, which are not subject to the obligation, for the contracting authority or the contracting entity mentioned in the third paragraph of Article L. 551-18, to notify the operators submitted before the signature of the contract, the award decision, or concerned by the second paragraph of this Article relating to public contracts based on a framework agreement or dynamic purchasing system, the cancellation of such a contract can only result from the finding of the failures mentioned in the first paragraph of the same article, ie the absence of all the publicity measures required for its award or publication in the Official Journal of the European Communities. European Union in the event that such publication is prescribed; in addition, where the contracting authority has failed to comply with the obligation of suspension laid down in Article L. 551-4 of the Code, the judge hearing the application for interim relief may also annul the delegation contract on the basis of the third paragraph Article L. 551-18 in the event of the delegating authority's failure to comply with the publicity and competitive bidding requirements to which the contract is subject in a manner that affects the chances of the author of the action seeking to obtain the contract ; whereas, as regards the contested contract, the municipality carried out the necessary publicity measures; that the request for cancellation of the contract is presented on the basis of the provisions of the third paragraph of Article L. 551-18 code administrative justice;
  1. Considering that it does not belong to the judge of the contractual referent, who must only decide on the respect, by the contracting authority, of the obligations of advertising and putting on competition to which is the subject of the conclusion of a contract, to pronounce the assessment of the value of an offer or the respective merits of the various offers; whereas, on the other hand, when it is seized with such a means, it must be verified that the contracting authority has not distorted the content of an offer by clearly disregarding or altering the terms and procedure and the selection of the successful tenderer in breach of the fundamental principle of equal treatment of candidates;
  1. Considering, in the first place, that the applicant company maintains that the municipality would have taken into account for the analysis of the offers an element not mentioned in the regulation of consultation; that, however, the constitution of a work fund for the renewal of the networks and the equipments constituted an element of the offer presented by the SAUR, and not a criterion of selection of the offers which the commune of Auriol would have had obligation of to inform the candidates for the award of the contract before the submission of their offers; As stated in point 11, it is not for the judge hearing the application for a preliminary ruling to rule on the way in which the municipality has assessed the company's offer with regard to the criterion of the financial aspects of the contract. offer;
  1. Considering, secondly, that the applicant company maintains that the municipality would have judged the offer of the SAUR better on the criterion relating to the quality of service by making prevail on the modalities set out in the regulation of consultation the level of the engagements aimed at the hydraulic performance of the networks; whereas, however, as stated in paragraph 11, it is not for the judge hearing the application for a preliminary ruling to rule on the way in which the municipality has assessed the company's offer with regard to the criterion of the quality of the service; that, consequently, the water company of Marseilles is not founded to support that the commune of Auriol would have disregarded the rules of advertising and putting in competition taking into account, at the stage of the analysis of the criterion of the quality service, an item that was not stated in the consultation rules;
  1. Considering, thirdly, that the applicant company maintains that the municipality disregarded the principle of equal treatment between the candidates by valuing in the tender of the SAUR the work fund that this company had proposed under two criteria different and refusing to the Marseille water company the application of a formula for updating its offer which had been granted to SAUR; that, however, contrary to what is supported, there was no valuation of the work fund proposed by the SAUR under both the financial criterion and the criterion of the quality of service; whereas, moreover, it does not follow from the record of the consultation, and in particular from the draft Convention, that the applicants were required to include in their forecast operating account expenses resulting from the implementation of the Gprod coefficient, which constitutes a parameter of the discount coefficient applicable to the remuneration of the delegate and to the ancillary costs; The plea alleging breach of the principle of equal treatment of candidates can not therefore be dismissed.
  1. Considering, fourthly, that if the applicant company submits that SAUR proposed several contractual amendments without identifying them as variants, it follows from the investigation that the consultation regulation authorized the applicants to submit contractual adjustments in the context of their offer and that only those having an impact on the financial and technical offer should be the subject of a variant; that contrary to what is supported, the SAUR did not have to present a variant; that the plea alleging a breach of Article 8 of the consultation regulation on variants is therefore in fact lacking;
  1. Considering that it follows from all the foregoing that the Marseille water company is not justified in seeking the annulment of the contract on the basis of Article L. 551-18 of the Code of Administrative Justice;

As regards the application of the provisions of Article L. 551-20 of the Code of Administrative Justice:

  1. Whereas, however, it follows from the provisions cited in point 9 of Article L. 551-20 of the Code of Administrative Justice that in the event of conclusion of the contract during the suspension provided for in Article L. 551-4 or Article L. 551-9 of the same Code, the judge of the contractual recourse is bound either to deprive the contract of its effects by annulling or terminating it, or to impose a penalty of substitution consisting of a financial penalty or a reduction the duration of the contract; whereas, in order to determine the appropriate measure, the judge hearing the application for interim measures may take into account, in particular, the nature and extent of the misunderstanding, its consequences for the person bringing the action and the nature, amount and the duration of the contract in question and the behavior of the contracting authority;

  1. Considering that the contract was signed during the suspension provided for in Article L. 551-4 of the Code of Administrative Justice; that in view of the nature of the breach found, which does not affect the very substance of the competition, there is no need to cancel the contract passed by the municipality of Auriol; whereas, on the other hand, in view of the duration of the contract and the behavior of the municipality, the result of the investigation is that it signed the contract in a rushed manner after having decided to award it, without having made sure of the the existence of a possible pre-contractual injunction notified to it, it is appropriate to impose on the municipality a financial penalty of 20 000 euros pursuant to the provisions of Article L. 551-20 of the Code. administrative justice;

The conclusions presented under Article L. 761-1 of the Administrative Justice Code:

  1. Considering that there is no need, in the circumstances of the case, to grant the submissions made by the parties before the Conseil d'Etat and the judge of the interim administrative court of Marseille under Article L. 761-1 of the Code of Administrative Justice;

DECIDE:

--------------

Article 1: The order of 1 September 2016 of the judge of the Court of Administrative Court of Marseille is annulled.
Article 2: The request presented by the Marseille water company before the judge of the summary of the administrative court of Marseille is rejected.
Article 3: A penalty of 20,000 euros, which will be paid to the Treasury, is imposed on the municipality of Auriol in application of the provisions of Article L. 551-20 code administrative justice.
Article 4: The conclusions of the parties presented before the judge of the interim administrative court of Marseille and before the Council of State under Article L. 761-1 code administrative justice are rejected.
Article 5: This decision will be notified to the water company of Marseilles, to the commune of Auriol, the company SAUR and the regional director of public finances of Provence-Alpes-Côte d'Azur.

Summary : It follows from Articles L. 551-14, L. 551-4 and R. 551-1 of the Administrative Justice Code (CJA) that the obligation to suspend the signature of the contract which applies to the contracting authority when a recourse to a pre-contractual injunction against the procedure for awarding the contract short of the notification to the contracting authority of the appeal by the representative of the State or by its author acting in accordance with Article R. 551-1, or the communication of this appeal by the registry of the administrative court. Where the author of a pre-contractual injunction establishes having notified it to the contracting authority under the conditions laid down in that article, the contracting authority signing the contract after receipt of the appeal must be regarded as having failed to comply with Article L. 551 -4. As regards an appeal sent to the competent department of the contracting authority by means of communication enabling the transmission of a document in real time, the fact that the notification was made outside the opening hours of that service has no effect, since the period of suspension is not counting from the actual acknowledgment of the appeal by the contracting authority, but from the receipt of the notification made to it.


Board of state
Reading of Monday, January 23, 2017

FRENCH REPUBLIC
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;

Viewed:

- 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 .

  1. 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 ";
  1. 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;
  1. 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;

  1. 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;
  1. 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;
  1. 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;
  1. 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 ";
  1. 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;

  1. 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;
  1. 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;

  1. 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;

DECIDE:

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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.