mer., 25 juin 2014 08:15:00 +0000

Public procurement agreement disputes: opening of redress for all third parties

Traditionally, since its ruling no. 14220 of 4 August 1905, the Council of State had decided on the conditions for redress in the middle of disputes in the framework of public agreements. This redress was open to parties to the administrative contract (awarding body and company selected following a call for tenders) or to third parties, but in a restricted manner, given that the latters could only form redress on "deeds which are detachable" from the agreement. Only deeds pre-dating or post-dating the public agreement could be the object of redress by third parties before the administrative judge for an abuse of power. The invalidity of such a detachable deed could not automatically lead to invalidity of the public agreement itself.

In its ruling n°291545 of 16 July 2007, the Council of State opened to candidates not selected in the framework of the call for tenders procedure, the possibility of contesting the validity of the contract before the administrative judge in the framework of a redress in the middle of a dispute. The latters could consequently directly request annulment of the public agreement without passing via a detachable administrative deed.

Since ruling n°358994 of 4 April 2014, the Council of State took the decision to open to all third parties the possibility of seeking redress in the middle of disputes by referral to the administrative judge. This possibility is however only applicable to those public agreements for which the contracts have been signed from its decision of 4 April.