Pre-contractual summary proceedings: The truth is elsewhere - Season 2

In the first season of this case, we told you how, in partnership with an excellent colleague, Bréon Ducloyer Avocats had the pre-contractual summary judgment judge of the Paris judicial court find that a contracting entity had failed to comply with its advertising and competitive bidding obligations.

 Pre-contractual interim relief has something in common with audiovisual law in that it is possible to reason in terms of seasons: the same procurement procedure may indeed give rise to several interim relief proceedings. Let us therefore tell you here the second season of this breathtaking scenario.

 Summary of previous episodes

 The courts have jurisdiction to rule on disputes relating to the award and performance of private law contracts, including those subject to advertising and competitive bidding requirements. European law, which lays down these obligations, is in fact indifferent to the classification given to contracts by the legislator or by the judge in domestic law.

 In the case referred to here, a contracting entity constituted as a limited company had launched a consultation procedure with a view to awarding a framework agreement with purchase orders for the supply of network detection equipment and associated services.

 After several rounds of negotiation, some candidates were unpleasantly surprised to receive a letter informing them that their bids were "unacceptable" within the meaning of article L. 2152-3 of the French Public Procurement Code, i.e. that they were deemed to exceed the budgetary appropriations allocated to the contract, determined and established before the procedure was launched.

 Surprised by this notification, several unsuccessful candidates therefore referred the matter to the pre-contractual interim relief judge of the Paris Court of Justice and had him rule that both their exclusion and the reason given for it were unfounded. The judge for pre-contractual interim relief therefore ordered the contracting entity, if it wished to continue with the award procedure for this contract, to resume the award procedure for several lots at the stage of analysis of the offers.

 New analysis of the offers... Identical to the previous one

 Following the first decisions rendered by the judge of the pre-contractual summary procedure, the contracting entity decided to resume the analysis of the offers. A few weeks later, it notified the candidates of new decisions... strictly identical to those which had been the subject of the first censure.

 Above all, the candidates were simultaneously informed that the contracting entity reserved the right to sign the contracts relating to the disputed lots within 48 hours... whereas buyers are required to respect the "stand still" period of 11 days (or 16 days in the case of non-dematerialized dispatch), including when they are constituted in the form of legal persons under private law (Public Order Code, art. R. 2182-1).

 The Firm therefore brought an action against the contracting entity the day after the notification of the new rejection decision in order to avoid any unpleasant surprises and a useless legal debate before the judge of the contractual summary procedure. The latter could indeed have been seized after the contracts had been signed, given the disregard of the "stand still" period, but it remains preferable, when possible, to avoid such legal debates. And the contractual summary procedure is generally less effective than the pre-contractual summary procedure.

 Declaration without action

At the end of the contentious debates that took place during the second pre-contractual summary proceedings, it became clear that the procedure was not only vitiated by purely formal defects.

The contracting entity therefore finally changed its mind and decided to grant the claims of the unsuccessful candidates by declaring the procedure to be discontinued.

This abandonment was officially motivated by the existence of the appeals filed before the judge of the pre-contractual summary procedure and the fact that their duration would have led to the expiration of the period of validity of the offers. Not wishing to expressly acknowledge the merits of the criticisms made by the unsuccessful candidates, the contracting entity maintained that this abandonment reflected a simple consideration of the judicial hazard.

While the pre-contractual summary proceedings must in principle be judged within a (indicative) period of 20 days, these two legal proceedings had in fact resulted in preventing the signing of the contracts for a period of almost 9 months. However, this was not due to the behavior of the parties but to the hazards of civil litigation and the multiplication of procedural hearings which delayed the pleadings and the deliberations.

The arguments put forward by the contracting entity did not convince the judge. Although the judge acknowledged that there was no longer any reason to file a pre-contractual summary procedure given the abandonment of the procedure, he nevertheless confirmed that this abandonment was in no way attributable to the reasons put forward by the respondent. He clearly recalled that the contracting entity was free to ask the candidates to extend the validity period of their bids and that the right to go to court was a fundamental right of the applicants. Finally, it ordered the contracting entity to pay the applicant's irreducible costs.