Is the contractual summary procedure useful?
In its decision Société hospitalière d'assurances mutuelles (SHAM) of June 16, 2022 (No. 459408), the Council of State (“Conseil d'Etat”) ruled on the interpretation of the provisions of the French Public Procurement Code relating to the modification of public contracts in the event of a change affecting the members of the incumbent grouping. While this ruling was commented on from the point of view of the rules applicable to riders in such a case, it also provides an excellent opportunity to revisit a little-known procedure: the contractual summary procedure (“référé contractuel”).
The "unloved" little brother of the precontractual summary procedure
Originally, the pre-contractual summary procedure (“référé précontractuel”) had the major interest of preventing the signature of the contract until the adoption of the judicial decision. Various weaknesses having been identified in both European and domestic law, a new type of recourse was instituted at the end of the 2000s: the contractual summary procedure.
Like the precontractual summary procedure, the contractual summary procedure may be filed against public procurement contracts, whether they are governed by public or private law. Beyond the regime applicable to the contract, the competent court differs in these two hypotheses.
Unlike the precontractual summary procedure, the contractual summary procedure may be brought after the signature of the disputed contract, provided that a maximum period of 31 days is observed in the event of publication of a notice of award in the Official Journal of the European Union (OJEU), or, in the absence of such a notice, six months from the day following the day on which the contract was concluded.
The coexistence of these two procedures does not mean, however, that a claimant may have recourse to either one or the other. The cases in which the contractual summary procedure can be opened are indeed more restricted than the cases in which the pre-contractual summary procedure can be opened and limited to :
total absence of advertising,
absence of publication in the OJEU if this is compulsory,
infringement of the stand still period (i.e. suspension between the notification of the rejection of the bids and the signature of the contract),
infringement of the suspension of the signature of the contract in case of referral to the judge of the pre-contractual summary procedure, and finally
failure to comply with the terms and conditions for reopening competition for contracts based on a framework agreement or a dynamic purchasing system.
The opening by the Council of State of the recourse to challenge the validity of an administrative contract to any interested third party only confirmed the residual character of this procedure (CE, Ass., April 4, 2014, Département de Tarn-et-Garonne, n° 358994).
A procedure which is nevertheless useful in certain cases
Notwithstanding the foregoing, the summary contract procedure may be useful. Some important decisions have indeed been rendered following such a procedure. For example, the Council of State has ruled that the fact that the bid of an applicant, having the status of an unsuccessful candidate, is irregular does not prevent it from relying on the irregularity of the bid of the successful tenderer (CE, May 27, 2020, Sté Clean Building, n° 435982), thus taking note of the case law of the Court of Justice of the European Union (CJEU, July 4, 2013, Sté Fastweb SpA, C-100/12). In his conclusions on this case, the rapporteur public Gilles Pellissier had considered that the solution adopted by the Council of State for contractual summary proceedings would apply to pre-contractual summary proceedings.
It is especially because it guarantees the useful effect of the recourse in the total absence of publicity or in case of an infringement of the stand still period that the contractual summary procedure may be useful, as shown by the SHAM case judged on May 16, 2022 by the Council of State.
Contractual summary proceeding and contract modification
In this case, a public health institution had concluded a contract for civil liability insurance and related risks with a joint grouping. During the performance of the contract, the public institution had agreed by amendment to the substitution of a member of the grouping by a new operator. A competing operator then applied to the judge for a summary contractual procedure to have this rider annulled.
The Council of State ruled that it is for the judge in charge of the summary procedure for contracts to rule on an amendment to a contract only when the conclusion of such an agreement is subject to the rules of advertising and competitive bidding (point 3). In so doing, it transposes to the contractual summary procedure a solution already adopted in a case concerning the modification of the first "Vélib" contract (CE, Sect., July 11, 2008, Ville de Paris, n° 312354).
After recalling this rule of principle, the High Court ruled that the substitution of a member of the grouping by another operator constitutes a modification of the contract holder, which may validly take place without a call for competition only in the cases provided for in Article L. 2194-1 of the French Public Procurement Code (point 7).
The Council of State considered here that the substitution was not included in these cases. In particular, it ruled that this modification did not take place in application of a review clause or an option and that it did not occur following a restructuring operation of the operator withdrawing from the grouping (point 10).
Noting that there was an overriding reason of public interest to prevent the termination of the provisions of the amendment organizing this substitution, the Council of State pronounced neither their retroactive cancellation nor their termination with immediate effect for the future, and imposed only a financial penalty of 5,000 euros on the public institution (point 14).
Although one may question the usefulness of this procedure for the applicant from an operational point of view, given the outcome of this litigation, this dispute will nevertheless have made it possible to further clarify the legal and litigation regime for riders to public order contracts.