Article(s) in Directive 2014/24/EU: Art. 56
Topic: Regularity of the signatory and legality of the tenderer’s application; Binding force of the consultation rules.
Member State: France
Court/rev. board: Conseil d’Etat
1. IMPLEMENTATION / RELEVANT NATIONAL LEGISLATION
Art. 56 of Directive 2014/24/EU was implemented, regarding the regularity of the tender and the reject of an irregular bid, by the Public Procurement and Concession Contracts Code, Art. L. 2152-1 and Art. L. 2152-2. If the decision concerns concessions, the solution can be transposed to public procurement.
In 2013, the city of Lavandou, which holds the concession for the Saint-Clair beach from the State, initiated an award procedure for a sub-concession for the public bathing service. After the contract was awarded, the city informed the applicant that his application was irregular due to missing information on the identity of the applicant. The applicant and his company then brought an action before the Toulon administrative court seeking that the municipality pay damages for the loss of earnings. The request was granted by the court and confirmed on appeal on the grounds that the municipality could not dismiss the application as irregular, since the identity of the applicant was apparent from the letter presenting the application and the amount of the fee was set out in a separate form. The municipality of Lavandou finally appealed to the Conseil d’Etat on the grounds that the Administrative Court of Appeal had erred in law by not investigating whether these requirements were manifestly irrelevant to the examination of the applications.
Administrative case law has long held that the tender documents are binding in all their elements. Consequently, an application or a tender that does not comply with them must be rejected, unless the contracting authority invites regularisation or proceeds ex officio to rectify an obvious error (CE 21 September 2011, Département des Hauts-de-Seine, n° 349149). In the case of concession contracts (but also in the case of negotiated procedures for public contracts), the negotiation phase also allows for regularisations if the initial insufficiency, on the one hand, does not prevent the conformity of the offer with the requirements of the specifications from being assessed and, on the other hand, is not an obstacle to the implementation of the contract, and is not likely to have an influence on the comparison between the bids and the choice of candidates who will be admitted to participate in the negotiation (see, most recently, CE 3 May 2022, Commune de Saint-Cyr-sur-Mer et Sté Le 10 Plage, nos 460089, 460155). In these cases, however, the regularisation is subject to the goodwill of the contracting authority, so that it is not a right and therefore not a real exception to the above-mentioned principle.
Behind the apparent rigour of the principle, case law has admitted numerous exceptions. These may be ‘purely venial defects’, as Mireille Le Corre calls them in her conclusions (failure to sign the CCAP – 8 March 1996, Pelte, n° 133198, provision of a photocopy that was not certified as true – 6 November 1998, APHM, n° 194960, tender not including the price proposal but the latter being known because it was public – 22 December 2008, Ville de Marseille, n° 314244). The expression is not found in case law, which prefers to refer to “requirements that are manifestly devoid of any usefulness for the examination of applications or tenders” or “if the disregard of these requirements results from a purely material error of such a nature that no one could rely on it in good faith in the event that the candidate’s tender is accepted”. One could add, as President Boulouis did in his conclusions on the decision Société Voyages Dupas Lebeda et al (5 January 2011, n° 342158, Rec.), the hypothesis of illegal requirements.
The judgment under review is in fact merely a summary of past case law and an original application of it. In this case, the Administrative Court of Appeal considered that the identity of the tenderer was apparent from the letter of presentation of the offer. This was not the opinion of the Conseil d’Etat and its rapporteur public, who indicated that the public entity could not know whether it was the applicant in his personal name who would be the signatory, or the company he intended to create. It is thus in line with the aforementioned rigour: an application submitted on paper must be rejected when the consultation regulations also required a digital medium (CE 22 May 2019, Société Corsica Ferries, n° 426763), as must the failure to produce the DC 1 form containing the elements relating to the exclusion clauses of public contracts (CE 9 March 2022, Commune de Ramatuelle and Société Tropezina Beach Development, n. os 454341, 454896).
The judgment and the conclusions of the rapporteur public also provide details on the conditions for compensating unsuccessful candidates. The judgment states that a candidate whose application is irregular cannot claim compensation because there is no causal link between his or her loss and the irregularities invoked (related to alleged breaches of impartiality in this case), including for application fees.