THE NULLITY ACTION AGAINST THE CONTRACT
All competitors who have been dismissed from the conclusion of an administrative contract may challenge the validity of a contract directly before the administrative court after its signature (public contract, contract subject to the order of 6 June 2005, public service private public partnership). That action may be accompanied by a request that the judge hearing the application for interim measures order, as a precautionary measure, the suspension of the performance of the contract.
EC July 16, 2007, Tropic company signaling works, N ° 291545
"Considering that, irrespective of the actions available to the contract judge before the contract judge, any competitor expelled from the conclusion of an administrative contract is entitled to form before the same judge an appeal of unlimited jurisdiction contesting the validity of that contract or some of its clauses, which are divisible, accompanied, if necessary, by indemnity claims; that this remedy must be exercised, including if the disputed contract relates to public works, within a period of two months from the completion of the appropriate publicity measures, in particular by means of a notice mentioning both the conclusion of the contract and the terms of its consultation in respect of the secrets protected by the law; that from the conclusion of the contract, and since it has the recourse defined above, the competitor ousted is, however, no longer admissible to seek the annulment for excess of power of the prior acts which in are detachable.
This quality of rejected competitor is recognized to the candidate who participated in the procedure or who would have had an interest to conclude the contract, that is to say, that he establishes that he could have been a candidate through the demonstration of his professional specialty in relation to the subject of the contract (CE Opinion April 11, 2012, Sté Gouelle, n ° 355446)
What is the use of Tropic Travaux Signalisation?
Squeezed candidates can directly challenge the validity of the market itself after its conclusion, and ask for its cancellation, as part of a appeal of full litigation.
EC, July 16, 2007, Tropic company signaling works, N ° 291545
" Considering that, thus seized of such conclusions by a competitor ousted, it is for the judge, when he notes the existence of defects vitiating the validity of the contract, to appreciate the consequences; it is incumbent upon it, after having taken into consideration the nature of the illegality which may be committed, either to pronounce the termination of the contract or to modify certain of its clauses, or to decide on the continuation of its execution, possibly subject to measures by the contracting authority, either to award compensation for the damages suffered, or finally, after having verified whether the annulment of the contract would not involve an excessive infringement of the general interest or the rights of the contracting parties, of cancel, totally or partially, if necessary with a delayed effect, the contract; that, moreover, an application challenging the validity of a contract may be accompanied by a request tending, on the basis of the provisions of Article L. 521-1 of the Code of Administrative Justice, to the suspension of its execution " .
Who can seize the contract judge?
The Council of State did not admit this new possibility of appeal only in favor of unsuccessful candidates when awarding a public contract, or to candidates who have not participated in the procedure but who demonstrate that they could have been a candidate due to their professional specialty in relation to the subject of the contract (CE Opinion 11 April 2012, Sté Gouelle, n ° 355446)
This recourse is not open to the benefit of other categories of third parties who can also justify rights aggrieved (for example: local taxpayers, subcontractors ... ..);
When can we seize the contract judge?
The Council of State has specified the conditions under which this new possibility of appeal open to the candidates evicted from a public contract was to be exerted, namely in a two months from the time of completion, by the contracting authority, appropriate publicity measures, "In particular by means of a notice mentioning both the conclusion of the contract and the terms of its consultation in respect of secrets protected by law" ;
You have to be very careful about the date of signing the contract. If the contracting authority sends a simple fax informing the unsuccessful candidates of the date of signature of the contract and the place where the parts of the contract can be consulted then the appeal period will start from the date of receipt of the fax!
If the contract is not signed on the date of submission of the appeal, it is inadmissible (TA Paris 18 Nov. 2008, SIEVE France-TA Toulouse 11 December 2007, Sté COFATECH CORIANCE).
How can we seize the contract judge?
The Tropic appeal is a full-fledged remedy. The lawyer's department is therefore obligatory. The appeal against the validity of the contract must be brought before the Administrative Tribunal with territorial jurisdiction.
What means can be invoked before the contract judge?
In support of his request, the ousted competitor may ask the administrative judge:
- either to pronounce the termination of the contract or to modify some of its clauses;
- to request the cancellation of the contract;
- award compensation for the damages suffered;
The claimant may also claim compensation for the injury he considers he has suffered (see sheet 86).
How to manage the procedure?
If the petitioner requests both the nullity of the contract concluded with the competing company and the compensation for the damage suffered, his appeal is equivalent to an appeal in contestation of the validity of the contract.
On the other hand, if the plaintiff merely claims compensation for the injury suffered, his action is tantamount to a genuine compensatory remedy.