CE, 13 novembre 2025, 506640, AP-HP, classé C, France
Article(s) in Directive 2014/24/EU: 22
Topic: Transmission of bids; Electronic means; Deadline; Late receipt; Diligence
Member State: FR
Court/rev. board: Conseil d’État
1. IMPLEMENTATION / RELEVANT NATIONAL LEGISLATION
The articles 22, 27.4 et 47 of the Directive 2014/24/EU were implemented by the Code de la commande publique (CCP), with the article R. 2151-5.
2. FACTS
The Assistance publique – Hôpitaux de Paris (AP-HP), an hospital, launched an open call for tenders for a framework agreement with purchase orders for the supply of implantable medical devices for maxillofacial surgery. The framework agreement, which will last for 46 months, is divided into 19 lots.
In a letter dated 7 April 2025, the AP-HP rejected the bid submitted by Orthopédie Biomeca Locomotion (OBL) for all 19 lots on the grounds that it was late and had been sent in a manner not authorized by the consultation rules. The files sent by the candidate exceeded the platform’s upload capacity, whereas the other candidates did not encounter this problem as they had not submitted bids for all lots.
The candidate had tried twice before the deadline to upload its bids (which was not disputed, but easily verifiable with the platform manager), then sent a download link a few hours after the deadline. The bid was rejected as late, as the public purchaser is required to do under Article R 2151-5 of the CCP.
In a ruling handed down on 15 July 2025, the Tribunal administratif of Paris overturned the decision to exclude the applicant company. The court also ordered the contracting authority, if it intended to continue with the procurement procedure, to restart it from the tender analysis stage, considering the tenders submitted by OBL.
The AP-HP appealed to the Conseil d’État against this decision, arguing that it was not responsible for the late submission of the OBL’s candidature and bid.
3. JUDGMENT
The question concerns whether the candidate had taken the necessary steps. The Conseil d’État answered in the affirmative, rejecting several arguments put forward by the AP-HP, such as the one relating to Article R. 2132-11 of the CCP, which provides that “Candidates and bidders who submit their documents electronically may send the purchaser a backup copy of these documents on paper or on a physical electronic medium”, precisely because this is only an option. Another argument was unsuccessful: an FAQ (frequently asked questions) indicated the maximum file size, but the rapporteur public considered that this was not sufficient to consider that the maximum size had been communicated to the candidates. This seems to imply that if this size had been indicated in the consultation rules, the outcome would have been different.
However, it would probably have been necessary to inform candidates how to submit a bid that exceeded this maximum size, since the conclusions state that “in fact, it is also undisputed that the platform did not indicate that the files uploaded were too large, which would have allowed the company to split its submission”. Similarly, the candidate cannot be criticized for not having carried out a preliminary test submission or sought to contact the platform’s technical support at any time before the deadline for submitting bids. All these details are provided not by the judgment, but by the rapporteur public. Finally, implicitly but necessarily, the candidate cannot be required to travel to submit their bid physically in such cases.
