Article L 551-1 of the Code of Administrative Justice:
"The chairman of the administrative court, or the magistrate he delegates, may be seized in the event of failure to comply with the disclosure and tendering requirements to which the contracting authorities are subject to administrative contracts for the purpose of executing works, the supply of supplies or the provision of services, with an economic consideration consisting of a price or a right of exploitation, or the delegation of a public service. The judge is seized before the conclusion of the contract. ".
WHAT WILL BE THE PRECONTRACTUAL REFERENCE?
The procedure of referred pre-contractual specially designed to penalize breaches of the publicity and competitive bidding requirements that could affect the 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.
WHO CAN SEIZE THE PRECONTRACTUAL REFERENCE JUDGE?
Article L 551-1 of the Code of Administrative Justice lists the persons with standing before the judge of the pre-contractual summary.
These are mainly people who have an interest in concluding the contract 'and who are likely to be harmed by a' failure to comply with the publicity and competitive bidding public markets and public service delegation agreements ".
Jurisprudence has gradually come to define the categories of applicants likely to fulfill this condition:
- Candidates ousted the procedure of call for competition (EC 19 March 1997, Minister of Agriculture, Fisheries and Food c / St Bull, Req.no. 171140, EC October 16, 2000, Sté Stereau, Req.n ° 213958)
- Former policyholders in the process of renewal (EC 22 Mar. 2000, Lasaulce, Rec.p.126)
- All who have a professional specialty conferring an interest in concluding the contract (EC 8 August 2008, Burgundy region, Req., No. 307143). Under certain conditions, subcontractors may also be granted an "interest in the conclusion of the contract" (TA Paris, Ord 8 November 2006, Sté FORSUP CONSEIL, 0615298).
WHEN CAN I SEIZE THE PRE-CONTRACTOR REFERENCE JUDGE?
Article L.551-1 of the Code of Administrative Justice relating to pre-contractual injunction provides that the President of the Administrative Tribunal may be seized before the conclusion of the contract.
The administrative case law is indeed constant to consider that the powers conferred on the judge of article L.551-1 can not be exercised after the conclusion of the contract (EC, Section, November 3, 1995, CCI Tarbes and High Pyrenees).
The Public Rapporteur's conclusions in this case state that it is the date of signature by the contracting authority on the act of engagement which puts an end to the powers of the Pre-contractual Pre-Trial Judge:
" The date to be taken into account is that which gives rise to a legal situation whose very constitution prevents the judge from exercising his powers, that is to say the one to which the existence of a synallagmatic contract may be held to be established.
This date appears to us to be, in the context of the Code of public markets, that of the signing of the act of engagementwhich, even before any notification, or the possible approval of the contract, when it is necessary, creates the contractual link and thus puts an end to the powers ".
In case of signature, the judge will pronounce a case not to rule.
Once the contracting authority has made its choice on an offer, it must notify all unsuccessful candidates of the rejection of their offer before signing the contract.
- For formalized procedures :
Theobligation to respect a minimum period of 16 days or 11 days between the date of dispatch of the notification and the date of signature of the contract
The contracting authority must respect a minimum period between the notification of the rejection and the signature of the contract.
This delay depends on the method of transmission of the rejection mail:
- He's from 16 days minimum if the rejection mail is sent by AR mail;
- He's from 11 days minimum if the rejection mail is sent by fax.
The fax must be privileged: the report of transmission of the fax will be worth proof of the notification of the mail of rejection. This method of transmission is much more economical than the transmission by mail AR and is considered by the administrative judge as having the same probative force as the RA (EC 14 December 2009, Sté Lyonnaise des Eaux, No. 328157).
It is during this period, and as long as the contract is not signed, that the unsuccessful candidate can appeal to the judge of the pre-contractual summary.
- For the adapted procedures:
The absence of an obligation to respect a minimum period of 16 days or 11 days between the date of dispatch of the notification and the date of signature of the contract
The contracting authority has the choice of the following three options:
Option 1: The contracting authority decides not to inform unsuccessful candidates before signing the contract
- Information of unsuccessful candidates it's not mandatory for contracts awarded under an adapted procedure.
The contracting authority can therefore sign the contract with the chosen firm and then inform candidates who have been dismissed for rejecting their offers or failing to inform them.
Option 2: The contracting authority decides to inform unsuccessful candidates before signing the contract and to respect a deadline of 16 or 11 days between the date of dispatch of the notification and the date of signature of the contract.
Option 3: The contracting authority decides to inform unsuccessful candidates before signing the contract and to respect a "reasonable" period of a few days between the date of dispatch of the notification and the date of signature of the contract.
If the contracting authority decides to inform the unsuccessful candidates of the rejection of their application or their offer before the signature of the contract by indicating a minimum period which it undertakes to respect before the signature of the contract, the non respect of this deadline is likely to lead to the annulment of the procedure in the context of a contractual referee.
TERMS OF NOTIFICATION OF THE REJECTION COURIER
- The starting point of the reasonable period of time is the date of receipt by the unsuccessful candidate of the information of the rejection. No form of notification is required: this can be done by registered letter with acknowledgment of receipt, by fax or by e-mail.
- The objective is, in all cases, to prove that the rejected candidate was informed of the rejection of his offer before the actual signing of the contract.
HOW CAN I SEIZE THE PRECONTRACTUAL REFERENCE JUDGE?
The applicant may apply to the pre-contractual judge for interim relief:
- Before taking part in the procedure if, for example, he considers that the consultation documents prevent him from participating or contain discriminatory provisions;
- During the procedure before the choice of the beneficiary;
- At the end of the procedure after the choice of the successful but before the signing of the contract to challenge for example the reasons for rejecting his offer
Referral to the Pre-contractual Referee is by fax as it is an emergency procedure!
WHAT MEANS TO INVESTIGATE BEFORE THE PRECONTRACTUAL REFERENCE JUDGE?
On the basis of the provisions of Article L 551 of the Code of Administrative Justice, the judge hearing the application for interim measures sanctions the violation by the public authorities of their obligations with regard to advertising and call for tenders where they have injured or was liable to injure the applicant company (EC 3 October 2008, SMIRGEOMES, Req. No. 305420).
The different categories of breaches that may be invoked before the Pre-contractual Pre-Trial Judge:
- Failure to comply with the advertising rules (lack of information in the compulsory sections of the advertisement notice)
- Discriminatory requirements in the specifications (reference to specific products held by a single supplier, reference to a trademark .....)
- The breach of equality between the candidates during the procedure (during the negotiations in particular or with regard to the information given to candidates)
- Challenge of selection criteria for applications or offers
- The challenge of the reasons for rejecting applications or tenders (contestation of irregularity of an offer or of a document or information missing from the application or offer)
HOW TO MANAGE THE PROCEDURE?
If it is not for the interlocutory judge to annul the contract itself, he may suspend the awarding of the contract or the execution of any decision relating thereto.
It may also annul any decision relating to the awarding of the contract or order the person responsible for the failure to comply with his obligations.
The pre-contractual judge has to rule in a twenty days delay from the date of referral. If the pre-contractual summary judge cancels the proceedings, the public body will have to start again and the plaintiff will then have another chance to obtain the contract.
In the event of a pre-contractual summary, the Administrative Tribunal shall immediately inform the contracting authority and send it a copy of the request filed by the applicant.
It is therefore appropriate :
- To immediately gather all the parts of the proceedings;
- To analyze the grievances developed by the applicant in his application;
- Send a copy of the file and the request to his counsel or process the file internally