Successive pre-contractual referrals: it's possible as long as the contract is not signed!
As long as the contract is not signed, a candidate evicted or prevented from participating in a publicity and competition procedure can introduce several successive pre-contractual summary proceedings. Only the signing of the contract renders the pre-contractual summary inadmissible.
What you must remember :
Point n ° 1: The possibility of introducing several successive pre-contractual summary proceedings as long as the contract has not been signed
The introduction of a pre-contractual summary is not locked into any particular time limit. Article L 551-1 of the CJA only indicates that the judge must be consulted before the contract is concluded. Thus, the fact that more than two months have elapsed between the notification of the rejection of the offer and the lodging of the request has no effect on the admissibility of the latter since the contract is not yet signed (CE December 14, 2009, municipality of La Roche-sur-Yon, n ° 325830).
The Code of Administrative Justice does not contain any specific provision prohibiting the introduction of several successive pre-contractual summary proceedings before the contract is signed. The decisions of the interim judge are moreover only provisional and do not have the authority of res judicata (CE March 6, 2009, Société Biomérieux, n ° 324064) so that the same applicant can decide to introduce a second pre-contractual summary after the first on the basis of the same breach or on another.
This is the reason why in its judgment of 8 December 2020, the Council of State recalls in recital no.7 that the circumstance that an economic operator has already exercised two pre-contractual summary proceedings during which he could have raised the ( s) breach (s) of which he relies, does not prevent him from forming a new pre-contractual summary as long as the period for suspending the signing of the contract has not expired
Point n ° 2: The possibility of introducing several successive interim suspension in the event of new means not known at the time of the first referral
In the same way, in a judgment of 29 June 2020, SCI Eaux Douces, n ° 435502,the Council of State considered in matters of summary suspension that the circumstance that the judge of summary proceedings rejected a first request for suspension presented on the basis of article L. 521-1 of the code of administrative justice does not preclude that the same applicant seize this judge with a new request having the same object, in particular by raising pleas or by putting forward new elements, even though they could have been submitted to him from his first referral.
In its judgment of December 8, 2020, the Council of State extends this solution to pre-contractual summary proceedings with simply the particularity of signing the contract which puts a definitive end to the pre-contractual summary procedure.
CE December 8, 2020, Sté Pompes funèbres funérarium, n °440704
Considering the following:
- It appears from the documents in the file submitted to the interim judge that the municipality of Challans has launched a consultation with a view to the award of a public service concession, for a period of thirty years, relating to the design, construction and then the operation of a communal crematorium. By letter of December 20, 2019, the company Pompes funèbres funérarium Lemarchand, which had applied, was informed by the municipality of Challans that its offer had not been accepted and that the contract had been awarded to the group. joint and several composed of the company Compagnie des crématoriums, agent, and the company Accueil funéraire 85. By a first request rejected on the merits by an order of the judge of the pre-contractual summary of January 31, 2020, the company Pompes funèbres funérarium Lemarchand requested, on the basis of Article L. 551-1 of the Code of Administrative Justice, the cancellation of the procedure for signing the concession contract. This company presented a second request on the same basis, which was rejected on the merits by an order of February 27, 2020. By a third request, registered on March 2, 2020, the company Pompes funèbres funérarium Lemarchand again asked the judge to pre-contractual summary, on the basis of Article L. 551-1 of the Code of Administrative Justice, to cancel the procedure, launched by the municipality of Challans, for the signing of the public service concession agreement. However, this company, informed that the disputed agreement had been signed on February 27, 2020, presented new conclusions in an additional brief and requested the contractual interim judge, on the basis of articles L. 551-13 and L. 551- 18 of the administrative justice code, to cancel the said agreement. She is appealing in cassation against the order of April 28, 2020 by which the summary judge rejected his conclusions in contractual summary.
On the legality of the contested order:
- Article 9 of the ordinance of March 25, 2020 adapting the rules applicable before administrative courts provides that, during the period between March 12, 2020 and the date of cessation of the state of health emergency declared under the conditions of article 4 of the law of March 23, 2020, "In addition to the cases provided for in article L. 522-3 of the administrative justice code, it may be ruled without a hearing, by reasoned order, on the applications presented in summary proceedings (...) ".
- In the first place, these provisions open to the judge of summary proceedings the possibility of ruling without a hearing on any request for summary proceedings during this period, without this option being limited to proceedings falling under Title II of Book V of the Code of Administrative Justice. Consequently, the summary judge, who did not have to justify his order on this point, was able without error of law to make use of this possibility in the context of proceedings initiated on the basis of Article L. 551. -1 of the administrative justice code and judged on that of articles L. 551-13 and L. 551-18 of the same code.
- Secondly, it does not follow from the provisions cited in point 2 that applications which had been entered on the roll for a public hearing before the declaration of the state of health emergency would be excluded from their scope. were struck off the list and then returned to a later date before being dispensed from hearing because of this state of emergency. Consequently, the summary judge did not vitiate the contested order with any procedural flaw by ruling without a hearing in such circumstances.
On the merits of the contested order:
- Under the terms of article L. 551-13 of the code of administrative justice: "The president of the administrative court, or the magistrate that he delegates, can be seized, once concluded one of the contracts mentioned in articles L. 551 -1 and L. 551-5, of an appeal governed by this section ". Under the terms of Article L. 551-14 of the same code: "The persons authorized to act are those who have an interest in concluding the contract and who are liable to be harmed by breaches of the obligations of publicity and competition to which these contracts are subject, as well as the representative of the State in the case of contracts concluded by a territorial collectivity or a local public establishment. / However, the recourse governed by this section is not open to the applicant use of the remedy provided for in Article L. 551-1 or in Article L. 551-5 when the contracting authority or the contracting entity has complied with the suspension provided for in Article L. 551-4 or Article L. 5519 and complied with the judicial decision rendered on this appeal ". Under article 29 of the decree of 1 February 2016 relating to concession contracts, then applicable: "I. - For concession contracts whose value is equal to or greater than the threshold referred to in article 9, at the With the exception of concession contracts falling under a and b of 2 ° of Article 10, the licensing authority, as soon as it has made its choice for an application or an offer, notifies all other candidates and tenderers of the rejection of their application or their offer. This notification specifies the reasons for this rejection and, for the tenderers, the name of the successful tenderer (s) as well as the reasons which led to the choice of the tender. / A deadline of at least sixteen days is observed between the date of dispatch of the notification and the date of conclusion of the concession contract. This period is reduced to at least eleven days in the event of electronic transmission of this notification to all interested candidates and tenderers ". Under the terms of article L. 551-4 of the code of administrative justice: "The contract cannot be signed from the referral to the administrative court and until the notification to the contracting authority of the judicial decision".
- It follows from the foregoing provisions that, with regard to the contracts mentioned in article 26 of the decree of 1 February 2016, then in force, relating to concession contracts, are the only ones admissible to refer a contractual summary to the judge, in addition to the prefect, candidates deprived of the possibility of usefully presenting a pre-contractual appeal, when the contracting authority or the contracting entity has not communicated the award decision to the unsuccessful candidates or has not observed, before signing the contract, the time limit set by this article, as well as those who have initiated a pre-contractual summary when the contracting authority or the contracting entity has not complied with the obligation to suspend the signing of the contract provided for in articles L. 5514 or L. 5519 of the administrative justice code or did not comply with the judicial decision rendered on this summary.
To conclude that the conclusions of the company Pompes funèbres funérarium Lemarchand in cancellation of the public service concession agreement presented on the basis of the aforementioned provisions of Articles L. 551-13 and L. 551-18 of the Administrative Justice Code are inadmissible , the summary judge noted that by admitting that the municipality of Challans disregarded the period during which it should not sign the contract, this failure did not deprive the company of its right to appeal to the pre-contractual summary judge. 'a third request invoking a new breach since it had already been able to present two pre-contractual summary proceedings rejected on the merits. By ruling thus, while the fact that the ousted company had already exercised two pre-contractual summary proceedings during which it could have raised the breach on which it was claiming, did not prevent it from forming a new pre-contractual summary as long as the deadline suspension of the signing of the contract had not expired, the author of the contested order committed an error of law.
- However, it emerges from the statements of the contested ordinance that the municipality of Challans had been informed of the meaning of the ordinance of 27 February 2020 by its lawyer, to whom this ordinance had been notified, before signing the contested contract. Therefore, it must be regarded as having received notification within the meaning and for the application of article L. 551-4 of the code of administrative justice. Consequently, the signing of this contract did not take place in breach of the suspension obligation set by this same article. In these conditions, it follows from what was said in point 6 that the company Pompes funèbres funérarium Lemarchand was not admissible to seize the judge of a contractual summary. This ground, which responds to a plea put forward before the trial judges and whose examination does not involve the assessment of any factual circumstance, must be substituted for the erroneous ground in law retained by the contested order, which it justifies. the device. Consequently, the appeal of the company Pompes funèbres funérarium Lemarchand must be dismissed.
- It follows from the foregoing that the appeal of the company Pompes funèbres funérarium Lemarchand must be rejected, including, consequently, its conclusions presented under article L. 761-1 of the administrative justice code. On the other hand, in the circumstances of the case, it is necessary to make the company Pompes funèbres funérarium Lemarchand responsible for the sum of 3,000 euros to be paid, on the one hand to the municipality of Challans, on the other hand. to the companies Accueil funéraire 85 and Compagnie des crématoriums under the provisions of this article.
Article 1: The appeal of the company Pompes funèbres funérarium Lemarchand is rejected.
Article 2: The company Pompes funèbres funérarium Lemarchand will pay, on the one hand, to the municipality of Challans, a sum of 3,000 euros, on the other hand to the companies Accueil funéraire 85 and Compagnie des crématoriums together, the same sum of 3,000 euros under the provisions of Article L. 761-1 of the Code of Administrative Justice.
Article 3: This decision will be notified to the company Pompes funèbres funérarium Lemarchand, the municipality of Challans, the company Accueil funéraire 85 and the company Compagnie des crématoriums.