Suspension recited: urgency to suspend a contract concluded by mutual agreement for unjustified technical reasons!
The State Council gives interesting indications on three points:I) on the arrangements for assessing the condition of urgency to suspend the execution of a public contract, (II) on the technical grounds which allow the award of a public contract without advertising or call for competition and finally (III) on the risks of opting for an excessive duration of the market.
Teaching n ° 1: new details on how to assess the condition of urgency to suspend the execution of a public contract
As a reminder, in its judgment of 18 September 2017, MH et al., The Conseil d'Etat has already had the opportunity to recall that the condition of urgency must be assessed solely in the light of the consequences of the performance of the contract of which the suspension is requested and not in the light of possible irregularities that may vitiate its award procedure (EC 18 September 2017, MH et al., No. 408894).
As the Public Rapporteur Gilles Pellissier points out in his conclusions on this decision of the Council of State « The cost of the contract for the community is not unrelated to the emergency provided that it is apprehended not in itself but with regard to the consequences of the immediate execution whose suspension is requested. ". In this case, the members of the deliberative assembly were contesting the amount of the work operation which they believe exceeded "the initial forecasts " of the project. The applicants considered that there was, therefore, an urgent need to suspend the execution of the contract with regard to the impacts on the local finances. On the basis of this argument, the Conseil d'Etat was able to consider that the overrun of approximately 171% by the operation of the initial estimate did not have a sufficiently serious impact on the local finances and that there was no therefore, it is not urgent to suspend the contract.
In its judgment of 10 October 2018, the Council of State gives new details on the elements that may be taken into consideration by the judge of interim suspension to assess the condition of urgency to suspend the execution of a public contract. In this new case, the Conseil d'Etat considers, on the contrary, that the suspension of the contract is justified once it has been concluded for an amount of 243 million euros, finding that such an amount significantly affects the finances. of the union by creating, in the short term, a situation that is difficult to reverse if the investments related to the execution of the contract are made.
It should be noted that, contrary to the judgment of 18 September 2017, the High Court no longer compares the percentage of the amount of benefits with local finances but keeps a margin of appreciation under the term "substantial". In addition, the Council of State also takes into account the compensatory consequences of a possible cancellation or termination of the contract by the judge of the fund on the finances of the union since the investments related to the execution of the contract would certainly already be made on the day on which the judge on the merits would have to rule. For all these reasons, the Conseil d'Etat considers that these circumstances characterize a serious and immediate attack on the union's interests and characterize an emergency situation.
Teaching n ° 2: the award of a negotiated contract without publicity or competitive bidding for technical reasons must not result from negligence on the part of the public purchaser
Under Article 30-I of the Public Procurement Decree of 25 March 2016, public purchasers may enter into a negotiated public contract without advertising or competitive bidding where, for example, works, supplies or services may only be provided by a particular economic operator, in particular for technical reasons. However, it should be noted that these reasons can only be applied where there is no alternative or reasonable alternative and the absence of competition does not result from an artificial restriction of the characteristics of the public contract.
The possibility of using the procedure for awarding a negotiated contract without advertising or competitive bidding has always been very limited. This procedure only applies to cases in which it may be considered that it would be unnecessary to invite economic operators to tender because there is only one operator able to provide the service. particular requested for technical reasons. Consequently, in case of litigation, the buyer who nevertheless decides to resort to this derogatory procedure must be able to provide the judge with proof that the company that has been selected is the only one able to perform the services of the contract so that the competition was useless.
On the other hand, where several economic operators are capable of providing the required services, it can not be demonstrated that such services can be provided by the holder of the current contract or that it is not established that they could not have been carried out by other operators with equivalent skills and technical means, with a view to comparable results, it is not possible to implement the negotiated procedure provided for in Article 30-I of the decree of March 25, 2016.
In its judgment of 10 October 2018, the Conseil d'Etat confirms that the technical reasons for using the negotiated procedure without advertising or prior call for competition remain strictly construed under the new rules and that non-compliance with the conditions required by the texts is a serious means of justification to justify the cessation of its execution and its cancellation.
In the present case, the notice of award of the contract put forward the risk of saturation of the non-hazardous waste storage facility as early as 2020 and the fact that the successful company, which had obtained a building permit and an authorization to operate on a non-hazardous waste recovery center, was the only operator able to meet the needs of the SYDNE and to provide a solution for sorting and recycling non-hazardous waste that could be implemented in 2019. This motive is sanctioned by the Council of State1 which notes whereas given the current landfill and storage capacity of the storage facility, it should not be saturated by the end of 2021; that the objective that the operation of the new waste treatment center is effective no later than September 2019 is linked to the fact that the authorization issued to the company [beneficiary] by a prefectural order of September 15, 2016 is likely to lapse after a period of three years; that it does not appear that no other economic operator could have come forward if the calendar adopted by the SYDNE had been different ". The use of the negotiated procedure without publicity or prior call for competition is therefore censored, since it is the timetable chosen by the contracting authority itself which is at the origin of the technical obstacles which are the basis for the implementation of this procedure. 'exception.
Lesson 3: Excessive duration of the contract may justify the suspension and cancellation of the contract
Article 16-I of the Public Procurement Decree of 25 March 2016 recalls that, subject to the provisions relating to the maximum duration of certain public contracts, the duration of a public contract is fixed taking into account the nature of the services provided. achieve and the need for periodic reopening. In its judgment of 10 October 2018, the Council of State states that an excessive length of an unjustified public service contract is a serious means of justification to justify the cessation of its execution and its cancellation. The irregularity resulting from the excessive length of such a contract may be invoked in the context of an action on the merits in contestation of the validity of the contract, whether by an unsuccessful candidate, an elected member of the opposition or the Prefect as part of his legality check.
It is certain that excessive length may be such as to prevent any periodic renewal of a contract and thus restrict the freedom of access to public contracts or distort the free play of competition between economic operators. In addition to the risk of suspension and / or cancellation of the contract, the plea of excessive duration of a contract is also liable to render the public purchaser liable for its anti-competitive effects. It is up to the public purchasers to adopt behaviors in accordance with the provisions of Articles L 420-1 and L 420-2 of the Commercial Code (EC 26 March 1999, EDA, AJDA 1999, p.427) but also not to participate or not to devote by its decisions the existence of anticompetitive behavior (EC November 3, 1997, Million and Marais, rec.p.406, TA Rouen April 28, 2000, Entreprise Jean Lefebvre Normandy, req.n ° 000697, AJDA 2000, p.842).
The administrative judge is competent to penalize practices which have the effect of preventing, restricting or distorting competition, as well as abusive behavior by a public purchaser whose object is to undermine the principle of freedom of access to public procurement and / or directly or indirectly to promote anti-competitive practices (TA Bastia, 6 February 2003, SARL Autocars Mariani, application number 1000231, EC 3 November 1997, Société Million et Marais, T. 406 J Stahl). However, by awarding a public contract to an economic operator for an excessive length unrelated to the object or the conditions of performance of the contract, the public purchaser participates directly and consciously in the constitution of an anti-competitive practice which is of a nature to engage his responsibility. A contracting authority that distorts the competition is liable to incur liability, including when it is not the author of the anti-competitive practice complained of (CAA Paris 4 December 2003, Tahiti Equipment Company). Islands, n ° 00PA02740: « Considering, finally, that if it belongs to the administrative authority allocating dependencies of the public domain to manage them so much in the interests of the field and its assignment as in the general interest, it is also incumbent on it, when , in accordance with the allocation of these dependencies, these are the headquarters of production, distribution or service activities, to take into consideration the principle of freedom of trade and industry and the rules of competition in the framework of which these activities are carried out "). In Decision No. 98-D-52 of 7 July 1998 on practices in the street furniture sector, the Autorité de la concurrence considered that, before being reclassified as service concessions, it was considered excessive a market duration of more than 12 years (Cons.conc.D No. 98-D-52 of 7 July 1998 - also Cons.Com.D No. 05-D-36 of 30 June 2005).
Board of state October 10, 2018 CIREST n °419406
- Considering that the documents in the file submitted to the judge hearing the application for interim relief show that the North and East Joint Waste Treatment Syndicate (SYDNE) entered into an agreement with Inovest on 10 November 2017 without any publicity or competition, a market for sorting, processing, storing and burying non-hazardous waste, for an amount of 243 million euros and a duration of 15 years; that the intercommunity community Eastern Meeting (CIREST), member of the SYDNE, and its president Mr. Virapoullé, first vice-president of the SYDNE trade union committee, have filed an appeal against the validity of this contract before the Administrative Court of Reunion ; that they have also presented, before the judge of the emergency courts of this court, on the basis of the article L. 521-1 of the code of administrative justice, a request for suspension of the execution of the market and communication of the all contractual documents; that the judge of the administrative court of La Reunion rejected this request by an order of February 13, 2018 against which the CIREST and Mr. Virapoullé appealed in cassation;
- Considering that under Article L. 521-1 of the Code of Administrative Justice: "When an administrative decision, even rejection, is the subject of a petition for annulment or reorganization, the judge of the interim, seized a request to that effect, may order the suspension of the execution of that decision, or of certain of its effects, where the urgency justifies it and where a means of creating, in state of the investigation, a serious doubt as to the legality of the decision (...) "; that, when the administrative court is seized of an application contesting the validity of a contract, the judge of the interim measures can be seized, on this basis, of a request tending to the suspension of its execution; only where the urgency so justifies and where there is evidence of a way to give rise to a serious doubt as to the validity of the contract and to the cessation or nullification of its performance, having regard to the interests in presence, he may order the suspension of his execution;
- Considering that it emerges from the statements of the order under appeal that after having noted that the SYDNE trade union committee had, by a deliberation of November 9, 2017, authorized its president to sign the contract at issue on the basis of a report which did not include not the price of the contract and without having the draft contract or any preparatory document or appendix, and without being able, therefore, to apprehend the totality of the methods of execution and the financial risks of this contract, the judge of summary is based on the fact that such a defect, even though it would be likely to lead to the annulment of the contract, was among those which can be regularized by the adoption of a new deliberation, to deduce that it was not likely to give rise to serious doubt as to the legality of the disputed market; that in so finding that a defect affecting the conditions in which the public person has given his consent to be bound by a contract can not lead to its suspension, the only reason that it is likely to be regularized and is not therefore unlikely to inevitably lead to the annulment of the contract, the judge hearing the application for interim measures tainted his order of error of law; that, consequently, the applicants are justified, without it being necessary to examine the other grounds of the appeal, to ask for its cancellation;
- Considering that, in the circumstances of the case, it is necessary, pursuant to Article L. 821-2 of the Code of Administrative Justice, to settle the case under the interim proceedings initiated;
On the admissibility of the application:
- Considering, on the one hand, that the members of the deliberative body of the territorial collectivity or group of territorial authorities which concluded an administrative contract are admissible to form before the judge of the contract an appeal of unlimited jurisdiction contesting the validity of that where the appeal is lodged within a period of two months from the completion of the appropriate publicity measures relating to its conclusion, and may be accompanied by a request that, on the basis of Article L. 521-1 of the Code of Administrative Justice, the suspension of its execution; that M. Virapoullé, member of the syndical committee of SYDNE, is, therefore, admissible to request the suspension of the contract concluded by the SYDNE;
- Considering, on the other hand, that any third party to an administrative contract liable to be prejudiced in his interests in a sufficiently direct and certain manner by his execution or his clauses is likewise receivable to form such an appeal and to attach it to a request for the suspension of the contract; it appears from the documents in the file that the CIREST and the intercommunal community of North Reunion formed, in 2014, the SYDNE to exercise their skills in waste treatment; that the CIREST finances a significant part of the SYDNE budget, in particular according to the tonnage of treated waste; that the award of the contract, taking into account in particular its amount and its duration, is likely to harm it in its interests in a direct and certain way; Thus, the objection of inadmissibility raised by Inovest against the SYDNE must be rejected.
On the urgency:
- Whereas, as stated in paragraph 1, the contract for which suspension is sought was concluded for an amount of EUR 243 million and a duration of 15 years to enable the implementation of the object of the union, for which it commits a large part of the resources; it implies that the construction of a waste recovery center, for which Inovest has at the same time obtained a prefectural authorization under the legislation on classified installations for the protection of the environment, be undertaken within a short time. environment; whereas the execution of the market may thus substantially affect the finances of the SYDNE and is likely to create, in the short term, a situation that is difficult to reverse; that the applicants further argue, without being seriously contested, that the consequences compensation for cancellation or termination of the contract by the trial judge would be all the more serious for the finances of the union that investments related to the execution of the contract would have already been achieved; that these circumstances characterize a serious and immediate attack on the interests of the SYDNE which can be invoked both by M. Virapoullé and, in the circumstances of the case, by CIREST;
- Considering, furthermore, that it does not follow from the investigation that the current waste storage site would be saturated within a time limit such that the suspension of the disputed market would seriously and immediately undermine a public interest;
- Considering that it follows from the above that the condition of urgency provided by Article L. 521-1 of the Administrative Justice Code must be regarded as fulfilled;
The existence of a means capable of giving rise to a serious doubt as to the lawfulness of the contract and to the cessation of its execution or its annulment:
- Considering that under I of article 30 of the decree of 25 March 2016 relating to public procurement: "Buyers may enter into a negotiated public contract without prior publicity or competitive bidding in the following cases: (...) / 3 ° When the works, supplies or services can only be provided by a specific economic operator, for one of the following reasons: (...) / b) Technical reasons. (...) / The reasons mentioned in b and c apply only when there is no alternative or reasonable alternative and the absence of competition does not result from an artificial restriction of the characteristics of the market public ";
- Considering, firstly, that, in order to justify the use of a negotiation procedure without advertising or call for competition, the contract award notice is based on a risk of saturation of the non-hazardous waste storage facility as soon as possible; 2020 and the fact that Inovest, which has obtained a building permit and an operating license for a non-hazardous waste recovery center, would be the only operator able to meet the needs of the SYDNE and bring a solution for sorting and recovering non-hazardous waste that can be implemented in 2019; whereas, however, it appears from the investigation that, given the current landfill flows and the capacity of the storage facility, it should not be saturated before the end of 2021; that the objective that the operation of the new waste treatment center is effective by September 2019 at the latest is linked to the fact that the authorization granted to Inovest by a prefectural decree of 15 September 2016 is likely to lapse after a period of three years; it does not appear that any other economic operator could have come forward if the timetable adopted by the SYDNE had been different; that, as a result, the plea that there was a reasonable alternative or alternative, that the lack of competition resulted from an artificial restriction of the characteristics of the public market and that, consequently, , the SYDNE, by passing the market without publicity nor putting in competition, has disregarded the provisions of article 30 of the decree is of nature, in the state of the instruction, to create a serious doubt on its validity and to lead the cessation of its execution or its cancellation;
- Considering, secondly that under I of article 16 of the decree of 25 March 2016: "Subject to the provisions of the order of 23 July 2015 referred to above and this decree relating to the maximum duration of certain public contracts the duration of a public contract is fixed taking into account the nature of the services and the need for periodic reopening of competition "; that in view of the fact that the contract at issue is a service contract, at the end of which the sorting center to be carried out by the company Inovest is not intended to return to the community, the plea alleging that its duration, fixed at fifteen years, disregards these provisions, is also of a nature, in the state of the investigation, to create a serious doubt as to the validity of the contract and to lead to the termination of its execution or its annulment;
- Considering that it follows from the foregoing that CIREST and Mr Virapoullé are justified in requesting the suspension of the execution of the market for sorting, treatment, storage, burial and recovery of non-hazardous waste services at the waste recovery center located in the municipality of Sainte-Suzanne, signed on November 10, 2017;
On the other conclusions of the application:
- Considering that the communication to the complainants of certain contractual documents which they maintain that they have not been able to obtain was not necessary in the present proceedings, the conclusions of CIREST and Virapoullé that it should be enjoined to the SYDNE to communicate them to them can only be rejected;
- Considering, finally, that the complementary brief of the CIREST and Mr Virapoullé does not contain imputation of offensive, outrageous or defamatory character, within the meaning of the provisions of the article L. 741-2 of the code of administrative justice, of nature to make pronounce the suppression; that there is no reason, therefore, to accede to the conclusions of the company Inovest tending to such a suppression;
- Considering that in the circumstances of this case, it is appropriate to charge SYDNE and the company Inovest the sum of 2,000 euros each to be paid to CIREST and to Mr Virapoullé in respect of the Article L. 761-1 of the Code of Administrative Justice.
Article 1: The ordinance of 13 February 2018 of the judge of the administrative court of La Reunion is annulled.
Article 2: The execution of the market for sorting, treatment, storage, landfilling and recovery of non-hazardous waste at the waste recovery center located in the town of Sainte-Suzanne, signed on November 10, 2017, is suspended.
Article 3: The joint waste treatment union of the North and the East and the Inovest company will pay to the intercommunal community East Reunion and to Mr. Virapoullé a sum of 2,000 euros each under Article L. 761- 1 of the administrative justice code.
Article 4: The surplus of the conclusions of the intercommunal community East Meeting and Mr Virapoullé is rejected.
Article 5: The conclusions of the company Inovest and the joint union of waste treatment of the North and the East tending to the application of the article L. 741-2 of the code of administrative justice are rejected.
Article 6: This decision will be notified to the Eastern Town Hall Intercommunity, to MA..Virapoullé, to the North and East Joint Waste Treatment Syndicate and to Inovest.