Order n ° 2009-515 of May 7th, 2009

Article L 551-13 of the Administrative Justice Code:
The president of the administrative court, or the magistrate he delegates, may be seized once one of the contracts mentioned in Articles L. 551-1 and L. 551-5, appeal under this section. ".

What is the use of the contractual referent?

The contractual summary procedure has been specially adapted to sanction breaches of the publicity and competition requirements which may affect the awarding of contracts. public markets, public service delegations, partnership agreements and contracts mentioned in Article 24 (2) of Ordinance No.2005-649 of 6 June 2005 on contracts awarded by certain public or private persons not subject to the Code of Conduct. public markets.

The contractual intermediary may not be exercised with regard to contracts the award of which is not subject to an obligation of prior advertising where the contracting authority or the contracting entity has, before the conclusion of the contract, made public its intention to concluding it and observing a period of eleven days after that publication, nor with regard to the contracts subject to prior publicity to which the obligation to communicate the award decision to unsuccessful candidates does not apply where the contracting authority or the contracting entity has accomplished the same formality.

The same exclusion applies to contracts based on a framework agreement or dynamic purchasing system where the contracting authority or the contracting entity has sent the award decision to the holders and observed a period of sixteen days between that date. sending and conclusion of the contract, reduced to eleven days if the decision has been communicated to all holders electronically.

Who can appeal to the judge of the contractual referent?

Article L 551-14 of the Code of Administrative Justice lists the persons with standing before the judge of the referred pre-contractual.

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 the advertising and competitive bidding obligations 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 applicant who has previously referred pre-contractual where the contracting authority or the contracting entity has complied with the suspension laid down in Article L. 551-4 or article L. 551-9 and complied with the jurisdictional decision on this appeal.

When can the judge of the contractual referent be seized?

Article L.551-13 of the Code of Administrative Justice relating to the contractual summary provides that the President of the Administrative Tribunal can only be after the conclusion of the contract.

Warning !!

If the contract is not signed on the date of the lodging of the appeal, the contractual representative will be declared inadmissible.

Which pleas can he raise before the judge of the contractual representative?

On the basis of the provisions of Article L 551-13 of the Code of Administrative Justice, the judge hearing the application for interim measures sanctions the violation by public authorities of their obligations with regard to advertising and call for competition (see sheet n ° 65). .

How to handle the procedure ?

The judge of the summary court has extensive powers:

  • it can pronounce the suspension of the execution of the contract (pending its decision on the merits)
  • pronounce the nullity of the contract, decide on its abbreviation or pronounce financial penalties not exceeding 20% of the amount excluding taxes of the contract.

These powers are, however, regulated: the judge is required to declare nullity in the event of serious breaches of the publicity and competition requirements, only "compelling reasons of general interest" being able to justify another sanction.

On the other hand, in the case of simpler violations, the judge can freely choose between nullity, abridgement of the contract or financial penalties.