Intérêt à contester la validité d’un contrat par le conseil régional de l'ordre des architectes

Interest in contesting the validity of a contract by the regional council of the order of architects

by Sébastien Palmier on June 19, 2020 | Category: Public markets
Intérêt à contester la validité d’un contrat par le conseil régional de l'ordre des architectes Intérêt à contester la validité d’un contrat par le conseil régional de l'ordre des architectes

CE June 3, 2020, Department of Loire Atlantique, req. n ° 426938

The National Council of Architects and the Regional Council of the Order of Architects have standing to contest the validity of a contract entered into in violation of Law No. 77-2 of the Law of January 3, 1977 on architecture. On the other hand, they have no quality to contest the reasons retained by a public buyer to legally resort to a design-build contract.

 Teaching n ° 1: The National Council of architects and the regional council of the order of architects have standing to contest the validity of a contract entered into in violation of the law n ° 77-2 of the law of January 3, 1977 on architecture

 

According to article 26 of law n ° 77-2 of the law of January 3, 1977 on architecture, the national council of architects and the regional council of the order of architects, are responsible for representing the profession of architects in particular with public authorities. They also have the capacity to act in court with a view in particular to the protection of the title of architect and respect for the rights conferred and the obligations imposed on architects by laws and regulations. In particular, they have standing to act on any question relating to the procedures for exercising the profession as well as to ensure compliance with the obligation to have recourse to an architect.

On this basis, they may, before all courts, exercise all the rights reserved for the civil party in relation to facts bearing direct or indirect damage to the collective interest of the profession of architects.

Thus, the signing of a contract in violation of the prescriptions of public order of law n ° 77-2 of the law of January 3, 1977 can harm the interests of the architects that it belongs to the national council of architects and the regional council of the order of architects to protect and defend before all jurisdictions.

The national council of architects and / or the regional council of the order of architects are therefore admissible and well-founded to intervene to contest the award of the disputed contract to an economic operator in violation of law n ° 77-2 of the law of January 3, 1977 amended that they are responsible for enforcing or contesting a procedure that violates the public policy requirements of this law.

In its judgment of June 3, 2020, the Council of State thus recalls that “ the regional councils of the order of architects have the capacity to take legal action with a view in particular to ensuring compliance with the obligation to use an architect ".

In a judgment dated May 17, 2017, Communauté de communes de Petite Camargue, No. 396034, the Council of State had already had the opportunity to consider that the National Council of Architects and the Regional Council of the Order of Architects may appeal against the validity of the contract as soon as the alleged irregularities are likely to affect the interests of the members it represents. "3. Considering that [….] In the case of project management contracts awarded under the adapted procedure, any remission of services gives rise to the payment of a premium (...)"; 4. Whereas it appears from the statements in the judgment under appeal that the Marseille Administrative Court of Appeal, without examining whether, in the present case, the investment which the candidate architects had to make to draw up their offer was significant, held that the absence, in the notice of call for competition of the disputed market, of provisions providing for the allocation of bonuses for unsuccessful candidates was such as to limit the access of architects to this market and that it was thus likely to affect the modalities of exercise of this profession ; that it deduced therefrom that the regional council of the order of architects justified an interest giving it quality to request the cancellation of the award of the contract for the disputed project management; that in ruling thus, the court did not vitiate its judgment either error of law or insufficient motivation ” (CE May 17, 2017, Community of communes of Petite Camargue, n ° 396034).

Teaching n ° 2: The National Council of architects and the regional council of the order of architects have no standing to contest the reasons for using a design-build contract

 

If the National Council of Architects and the Regional Council of the Order of Architects have standing to contest the validity of a contract entered into in violation of Law No. 77-2 of the Law of January 3, 1977 on architecture, in on the other hand, they do not have standing to contest the reasons retained by a public purchaser to have legal recourse to a design-build contract.

In this case, the regional council contested the possibility for the Loire-Atlantique department to have recourse to a design-build contract by considering that the conditions required by the public procurement regulations then in force were not met.

For the Council of State, the award of a design-build contract does not modify the conditions for exercising the project management mission by considering that: “The sole award by a local authority of a public contract entrusting a specific economic operator with a mission relating both to the preparation of studies and the execution of works cannot be regarded as likely to adversely affect sufficiently direct and certain of the collective interests for which they are responsible ".


 CE June 3, 2020, Department of Loire Atlantique, req. n ° 426938

Considering the following:

  1. Independently of the actions available to the parties to an administrative contract and of the actions opened before the judge of the excess of power against the regulatory clauses of a contract or before the judge of the summary judgment on the basis of articles L. 551-13 and following of the administrative justice code, any third party to an administrative contract likely to be injured in its interests in a sufficiently direct and certain way by its conclusion or its clauses is admissible to form before the judge of the contract an appeal of full jurisdiction contesting the validity of the contract or of some of its non-regulatory clauses which are divisible from it. This action before the contract judge is also open to members of the deliberative body of the local authority or group of local authorities concerned as well as to the representative of the State in the department in the exercise of legality control. The applicants may possibly attach their appeal to a request tending, on the basis of Article L. 521-1 of the Code of Administrative Justice, to suspend the execution of the contract.
  2. It appears from the documents in the case submitted to the trial judge that by public invitation to tender published in the Official Journal of the European Union on October 26, 2013, the department of Loire-Atlantique launched a procedure for awarding '' a design-build market, with a view to building a college in Saint Joseph de Porterie, on the territory of the commune of Nantes, comprising twenty divisions, expandable to twenty-four, as well as four official housing. After analyzing the offers, the contract was awarded to the “Eiffage-Linéa“ group of companies, made up of the companies Eiffage Construction Pays de la Loire, Linéa Architectes, In Situ, BH, Serba, Albdo, Synergie Bois, Itac, Process cuisines, Zephir Paysages and Urbaterra, and was concluded on March 11, 2015. The regional council of the order of architects of Pays de la Loire appealed the judgment of March 23, 2017 by which the administrative court of Nantes rejected its request for the cancellation, or failing that, the termination of this design-build contract. By a judgment of November 9, 2018, against which the department of Loire-Atlantique appealed in cassation, the administrative court of appeal of Nantes annulled this judgment and this market.
  3. On the one hand, according to article 26 of the law of January 3, 1977 on architecture: “The national council and the regional council of the order of architects contribute to the representation of the profession before public authorities. / They have standing to act in court with a view in particular to the protection of the title of architect and respect for the rights conferred and the obligations imposed on architects by laws and regulations. In particular, they have standing to act on any question relating to the procedures for exercising the profession as well as to ensure compliance with the obligation to have recourse to an architect. / (...) “.
  4. On the other hand, under the terms of article 7 of the law of July 12, 1985 relating to public project management and its relationship with private project management applicable to the dispute: “The mission of project management that the contracting authority may entrust to a person of private law or to a group of persons of private law must make it possible to provide an architectural, technical and economic response to the program mentioned in article 2. / For the realization of a work, the mission of project management is distinct from that of contractor. / (...) “. According to I of article 18 of the same law: “Notwithstanding the provisions of title II of this law, the contracting authority may entrust by contract to a group of persons of private law or, for the sole works of infrastructure, to a person of private law, a mission relating to both the establishment of studies and the execution of works, when reasons of a technical nature or of contractual commitment on a level of improvement of the energy efficiency or the construction of a new building exceeding the thermal regulations in force make it necessary for the contractor to be associated with the studies of the structure. A decree specifies the conditions of application of this paragraph by modifying, as necessary, for public persons governed by the public procurement code, the provisions of this code “. Under the terms of article 37 of the public procurement code applicable to litigation, the substance of which was included in article L. 2171-2 of the public procurement code: “A design-build contract is a works contract which allows the contracting authority to entrust to a group of economic operators or, for infrastructure works only, to a single economic operator, a mission relating both to the preparation of studies and the execution of works. / The contracting authorities subject to the provisions of the aforementioned law of 12 July 1985 may, in application of I of its article 18, have recourse to a design-build contract, whatever the amount, only if a contractual commitment on a level of improvement in energy efficiency or technical reasons make it necessary for the contractor to be associated with the studies of the structure. / (...) “.
  5. A third party to an administrative contract is only entitled to challenge the validity of a contract, as stated in point 1, if he is likely to be injured in his interests in a sufficiently direct and certain manner by its execution or by its clauses. If, by virtue of the aforementioned article 26 of the law of January 3, 1977 on architecture, the regional councils of the order of architects have the capacity to take legal action with a view in particular to ensuring respect for obligation to have recourse to an architect, the sole award by a local authority of a public contract entrusting a specific economic operator with a mission relating both to the drawing up of studies and the execution of works cannot be viewed as likely to harm in a sufficiently direct and certain manner the collective interests for which they are responsible.

  6. Consequently, the regional council of the order of architects of the Pays de la Loire was not admissible to bring before the contract judge an appeal of unlimited jurisdiction contesting the validity of the design-build contract in dispute.
  7. It follows from the above that the department of Loire-Atlantique is entitled to request the annulment of the judgment under appeal.
  8. It is necessary, in the circumstances of the case, to settle the case on the merits in application of the provisions of article L. 821-2 of the code of administrative justice.
  9. As stated in points 5 and 6, the conclusions of the regional council of the order of architects of Pays de la Loire tending to cancel the design-build contract in dispute were inadmissible in the context of a appeal to contest the validity of this contract. Consequently, the regional council of the order of architects of the Pays de la Loire is not justified in complaining that, by the judgment under appeal, the administrative court of Nantes rejected his request.
  10. It is necessary, in the circumstances of the case, to charge the regional council of the order of architects of Pays de la Loire the sum of 3,000 euros to be paid to the department of Loire-Atlantique for provisions of article L. 761-1 of the code of administrative justice. On the other hand, these provisions prevent an amount from being charged in this respect to the department of Loire-Atlantique which is not, in the present proceedings, the losing party.

 

DECIDE:
Article 1: The judgment of November 9, 2018 of the Nantes Administrative Court of Appeal is set aside.
Article 2: The request of the regional council of the order of architects of the Pays de la Loire presented before the administrative court of appeal of Nantes is rejected.
Article 3: The regional council of the order of architects of the Pays de la Loire will pay the department of Loire-Atlantique a sum of 3,000 euros under article L. 761-1 of the code of administrative justice.
Article 4: The conclusions of the regional council of the order of architects of the Pays de la Loire presented under the provisions of article L. 761-1 of the code of administrative justice are rejected.
Article 5: This decision will be notified to the department of Loire-Atlantique and to the regional council of the order of architects of Pays de la Loire.