Contractual Referee for Public Procurement Disputes

Extract

[...] As recently stated by CE July 2024, Association Nayma « the Conseil d'État specifies that it is up to the candidates for a public procurement contract to identify the "easily detectable" contradictions between the consultation documents, as these alone do not render the award procedure irregular. In such a case, the consultation regulations prevail and the companies' offers may be irregular if they do not comply with all its terms, regardless of inconsistencies with other consultation documents." It is also up to the candidates to question the contracting authority to clarify this ambiguity. II. The choice of a contentious procedure after signing the contract and the shortcomings related to the rules of public procurement. [...]

[...] In this case, the inconsistency is easily detectable, to this is added the hierarchy of documents which indicates to which document to refer in case of inconsistencies. In addition, a simple material error does not entail an irregularity of the offer. In this case, it is indicated that the error was minor, a difference of two points in a scale that differed between the AAPC and the consultation regulation, in addition, it is indicated that this material error would not change the final ranking. Nevertheless, it remains possible to file a full contentious appeal for non-compliance with the suspension deadline. [...]

[...] - The appeal for abuse of power which, in this case, presents little interest. Thus, taking into account the facts of the case, one could recommend a summary proceedings or a full jurisdiction appeal to contest and raise shortcomings in the procurement procedure of the contract, the conditions are currently met. As of November a contractual reference is to be considered, this being possible 31 days from the publication of a notice of attribution as provided for in Article L and following of the Code of Administrative Justice. [...]

[...] However, according to evolving jurisprudence, the validity of the contract is conditional on the irregularities not substantially affecting the procurement procedure or the ranking of candidates and that they do not include the principles of freedom of access to public markets, equal treatment of candidates and transparency. If the commune can be concerned about the non-compliance with the suspension deadline, it is unlikely to see the judge cancel the contract due to the material error. [...]

[...] As stated by the CE March 2016, Centre Hospitalier de Perpignan : « When they are seized of a request for the disclosure of documents relating to a public contract, the authorities mentioned in Article L300-2 of the same code must examine whether the information contained in these documents may, by affecting the competition between economic operators, infringe commercial and industrial secrecy and thus hinder disclosure. Thus, a list of communicable or non-communicable information has resulted. If the number of beneficiaries and the list of admitted candidates must be communicated in response to the obligation of transparency, the BPU of another non-retained company is not a communicable information. The deliberation awarding the contract is a public document that is obviously communicable. [...]