Decision n. 469127, 1st June 2023, Council of State, Communauté d’agglomération de la région de Château Thierry, classé B, France
Article(s) in Directive 2014/24/EU: Art. 22; 26 (4) al. 2
Topic: Electronic submission; Irregular bid; Liability
Member State: FR
Court/rev. board: Council of State
1. IMPLEMENTATION / RELEVANT NATIONAL LEGISLATION
Articles 22 and 26 (4) al. 2 of the Directive 2014/24/EU were implemented by the Code de la commande publique (CCP), with the art. R. 2132-3: “The purchaser’s profile is the dematerialisation platform enabling purchasers to make consultation documents available to economic operators electronically and to receive documents sent by candidates and tenderers electronically. An order of the Minister for the Economy appended to this code sets out the functions and minimum requirements for buyer profiles.”
2. FACTS
A company mistakenly submitted its electronic bid in the “digital drawer” of another contract opened to competition by the Communauté d’agglomération de la région Château Thierry, whose deadlines for submission of bids and applications were identical. The contracting authority did not take the bid into account.
The company asked the administrative court of Amiens, by way of interlocutory procedure, to set aside the procedure for awarding the public procurement in dispute as from the stage at which the applications and tenders were examined, and to order the Communauté d’agglomération de la région Château Thierry to resume the award procedure as from that stage, unless it intended to abandon the award of the contract.
In an interlocutory statement dated November 8th, 2022, the administrative court of Amiens accepted the request.
The Communauté d’agglomération de la région Château Thierry appealed to the Conseil d’État.
3. JUDGMENT
Behind the seemingly innocuous question of whether a purchaser must correct an error in electronic submission, there are formidable practical issues relating to the possibility or obligation of rectifying an irregular tender.
A contracting authority rejected a company’s application and tender on the sole grounds that they had been submitted in the “digital drawer” corresponding to another contract. In fact, the applicant company had made a mistake, by submitting its application for contract 2022S13 in the drawer for contract 2022S14, which also overwritten the bid it had initially intended to submit for contract 2022S14…
We know that article R. 2152-2 of the CCP states: “the purchaser may authorise all tenderers concerned to regularise irregular tenders within an appropriate period, provided that they are not abnormally low“. However, this article, which was neither cited nor even referred to by the Conseil d’État, could not serve as a basis for the question posed, as it only refers to the possibility of inviting bidders to regularise their bids and not to any obligation to regularise or to invite bidders to regularise their bids.
As the text of the CCP is silent on this point, it could be concluded that the rejection was entirely justified. But even in an area that is very much governed by “written law”, the courts sometimes add to the silence of the text. For example, it has long been accepted that the public authority must itself rectify “a purely material error, of an exceptional nature“.
It was undoubtedly out of a desire to extend this case law that the judge hearing the pre-contractual interim injunction thought he could annul the rejection, while linking it to the circumstances of the case: he considered that the contracting authority had breached the obligation to invite competition by not taking into account the application and bid of the tenderer company, given that the deadlines for submission of bids and applications were identical, that there was no possible ambiguity as to the fact that the documents sent by the company corresponded to contract reference 2022S13, and that their reinstatement under the disputed award procedure did not require any particular analysis or constraint on the part of the contracting authority. He may also have thought that he could hide behind another case law which had ruled, in the days of “paper” files, that “the absence, in the envelope containing a company’s bid, of a document required by the contracting authority in support of the bids, does not in itself justify the elimination of that tender if the document was indeed produced but was mistakenly included in the envelope relating to the company’s application” (CE, November 7th, 2008, Société Hexagone 2000, no. 292570, T. p. 807). However, on a careful reading of this latest ruling, the Conseil d’État censured the administrative court for having required the purchaser to reject the bid. Contrary to what the wording might suggest (“does not in itself justify“), this was not a case of an obligation to regularise a bid.
Be that as it may, the Conseil d’État here overturned the order of the pre-contractual interim relief judge, who had imposed a requirement to regularise the application and the bid filed in the same drawer. The contracting authority was therefore not required to rectify this error itself. Reasons for this censure were convincingly put forward by Nicolas Labrune, the rapporteur public: imposing an obligation, on the public authority, to redirect the tender submitted by mistake in the wrong drawer, would be equivalent to requiring any purchaser awarding several contracts at the same time to check that no error had been made, not to mention the fact that it is not necessarily the same administrative departments that deal with the different contracts of the same contracting authority.
But he went on to discuss a hypothesis that, as far as we know, has never been put forward before: should we reserve the right to consider the case where a drawer error has been reported in good time by the tenderer? In that case, would the public authority not be obliged to rectify the bid? The Conseil d’État explicitly rejected this idea – and the Conseil d’État implicitly – on the grounds that making a distinction according to whether or not the irregularity had been reported “could give rise to contentious debates, particularly as regards the reasonable period within which the report must be made and, in so doing, [would be] a source of uncertainty for contracting authorities“, even though they can always rectify the irregularity if they have an interest in doing so.
On the other hand, the rapporteur public did not mention the exception to the principle that there is no obligation to rectify an error in electronic submission: the Conseil d’État states that the situation would be different “if it were established that the error was the result of a malfunction of the public purchaser’s platform“.
This reservation seems both logical and prudent: logical, because the applicant could not then be blamed for such an error – which would not, moreover, be an error; prudent because the Conseil d’État does not specify who bears the burden of proof. In this respect, it should be remembered that it has already been ruled that, in order to assess whether a bid was submitted late due to a malfunction of the platform attributable to the public purchaser, the bidder is required to establish “that it took the normal steps expected of a candidate to upload its bid in good time” (CE, September 23th, 2021, RATP, no. 449250, T. pp. 768-849).
The question of whether a purchaser has the option – and not the obligation – to regularise or request regularisation of an irregular tender is quite different. The answer – a positive one – can be found in the article of the CCP. But here, again, reading the Code is not enough, as case law has set limits on this possibility. A distinction must be made between specifying a bid, which is legal (CE, November 9th, 2007, Société Isosec, no. 288289), and modifying a bid (CE, October 26th, 1994, SIVOM des communes de Carry-le-Rouet et Sausset-les-Pins, no. 110959; CE, March 8th, 1996, A…, no. 133198), which is not.
