Public procurement : irregular bids and pre-contractual interim measures

Published on 05 september 2023

The Conseil d'Etat has clarified its case law on the right of unsuccessful candidates to bring an action in the context of a pre-contractual summary procedure.

This ruling by the Conseil d'Etat on 1 June 2023, no. 468930, relates to the procedure for awarding the concession contract for Tahiti-Faa'a airport initiated by the State's publication of a concession notice in November 2019.

In a letter dated 15 September 2021, the consortium comprising the Chamber of Commerce, Industry, Services and Trades (CCISM), Meridiam SAS, Aéroport Marseille Provence and Boyey was informed that its bid, which had come third, had been rejected and that the contract had been awarded to the Egis Airport Opération / Caisse des dépôts et consignations consortium.

The CCISM lodged a pre-contractual application for interim relief against this procedure and, in an order dated 28 October 2021, the interim relief judge of the Administrative Court of French Polynesia annulled the decision to award the concession on the grounds of the irregularity of the bid submitted by the consortium led by EGIS. This decision was confirmed by the Conseil d'Etat in an order dated 2 March 2022.

In a letter dated 9 September 2022, the Director of Air Transport informed Egis Airport Opération that the tender procedure had been resumed and that the concession contract had been awarded to Vinci Airports, which had come second in the bid analysis.
On 20 September 2022, Egis Airport Opération in turn filed a pre-contractual application seeking the annulment of all decisions relating to the award of the concession contract.

The Administrative Court of French Polynesia granted this application in an order dated 18 October 2022, on the grounds that the principle of freedom of access to public procurement had been infringed by the prohibition on building and public works companies participating in several groupings.

The issue was an interesting one, and had to be assessed in the light of the very weak competitive fabric of building and public works companies in French Polynesia.

However, the Conseil d'Etat did not have the opportunity to rule on this point since, on appeal by the newly awarded company, it annulled the order of the Administrative Court of French Polynesia and rejected the claims of EGIS Airport Opération, considering that the latter had no standing to act since its bid had been deemed irregular by the Administrative Court's order of 28 October 2021, which had become final.

It should be remembered that the concept of standing for a candidate whose bid has been deemed irregular in a pre-contractual summary procedure has undergone several developments in case law.

Firstly, the Conseil d'Etat held that the irregularity of the bid deprived the unsuccessful candidate of any interest in bringing an action, since he was not likely to be harmed by any failure to comply with the obligations to advertise and invite tenders.Secondly, and under the influence of the case law of the Court of Justice of the European Union, the Conseil d'Etat altered its position, holding that :

"The fact that the tender submitted by an unsuccessful competitor in a pre-contractual summary procedure is irregular does not prevent that competitor from relying on the irregularity of the winning company's tender in order to challenge the award of the contract".

The unsuccessful candidate may therefore challenge the legality of the winning bid, even if his own bid is irregular. They have a legitimate interest in ensuring that no tender is selected.

This development was taken up by the Conseil d'Etat in the decision under review.

Thirdly, the judgment under review states that:

"However, if the bid of this unsuccessful competitor has been deemed irregular by a final court decision annulling the decision to award the contract, it cannot be regarded as having an interest in entering into the contract and being entitled to act against the new decision awarding it after the procedure has been resumed."

This clarification is also inspired by the case law of the Court of Justice of the European Union which, in a judgment dated 11 May 2017, had ruled that:

"The decision to exclude the said tenderer had, in that case, been confirmed by a decision which had acquired the authority of res judicata before the court hearing the appeal against the decision awarding the contract gave its ruling, so that the said tenderer had to be regarded as having been definitively excluded from the procedure for awarding the public contract in question."

The Conseil d'Etat thus notes that a candidate whose bid has been definitively recognised as irregular loses the right to bring an application for precontractual review, regardless of the grounds raised.

This clarification seems logical insofar as, in the opposite case, the administrative court could be led to call into question a final court decision which, in most situations, it would itself have made.

The inadmissibility of the winning candidate's bid, depending on whether or not it has been definitively accepted, therefore has a direct impact on his interest in bringing an action.

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