Article(s) in Directive 2014/24/EU: Art. 21 
Topic: Negotiating a concession, financial guarantees, and communication of administrative documents 
Member State: FR 
Court/rev. board: Council of State 

1. IMPLEMENTATION / RELEVANT NATIONAL LEGISLATION

Art. 21 of Directive 2014/24/EU requires Member States to ensure the confidentiality of exchanges and information during the public procurement procedure. This guarantee is found in French law in the Code des relations entre le public et l’administration (CRPA) which, in Art. L. 300-2 and L. 311-1 to L. 311-7, provides for a system of limitation of the right of access to administrative documents on the grounds, particularly information relating to commercial or business secrecy.

2. FACTS

Through deliberation of April 1^st, 2019, the City of Paris awarded Clear Channel France a service concession for the design, manufacture, installation, maintenance, and operation of general or local street furniture carrying advertising. The SOMUPI company, candidate for the award of the concession, requested the communication of documents relating to the successful bidder’s offer and the award of the contract. Following the City of Paris’ silence, the applicant company referred the matter to the Commission d’accès aux documents administratifs. SOMUPI asked the tribunal administratif of Paris to annul this decision, insofar as it refused to disclose to it i) the documents mentioned by the first deputy mayor of Ville de Paris during the meeting of the Paris Council on April 1^st, 2019, ii) the letters exchanged between the Ville de Paris and Clear Channel France during the bid negotiation phase, iii) and the bid analysis report, which was concealed solely in order to comply with business secrecy. In a judgment dated April 12^th, 2022, the court upheld these claims. The City of Paris then appealed against this judgment to the Conseil d’Etat.

3. JUDGMENT

The Conseil d’Etat has already had occasion to rule on some of what is and is not communicable in the context of the award of contracts and concessions. Thus, the contract document, the overall price of the tender and the services proposed by the winning company are, in principle, communicable, but the unit price list of the winning company – since it reflects the commercial strategy of the company operating in a sector of activity and is thus likely to infringe commercial secrecy –, is not, in principle, communicable (CE, March 30^th, 2016, no. 375529, Centre hospitalier de Perpignan c Bureau européen d’assurance hospitalière), nor is the estimated quantitative details of a contract and the final detailed offer of the successful candidate, if they reflect the commercial strategy of the company (CE, September 28^th, 2016, no. 390760, Société Armor Développement et autres). The Ville de Paris judgment commented in here provides new clarifications in a rather liberal sense, i.e. favourable to disclosure in certain aspects, but not on the content of the negotiations.

Firstly, a debate in the Paris Council (concerning the guarantee that the candidate presented to ensure the announced amount of the fee to be paid to the city for the street furniture concession) led to a request by a subsidiary of J.-C. Decaux, SOMUPI, to communicate the information provided by the candidate finally selected – the company Clear Chanel. For the Conseil d’Etat, “the court noted that SOMUPI could legitimately consider, in view of the statements made by this deputy, that there were other documents relating to the bank guarantee of the winning company than the sole note from the municipal services already produced by the local authority, which did not reveal any element that could shed light on the reality of the amount of this bank guarantee”. As stated by the rapporteur public Laurent Domingo, it was not the guarantee itself that was requested – since it must be provided within three months of the signing of the contract –, but the documents provided by the Clear Channel company before the contract was concluded, which convinced the City of Paris that the fee would be guaranteed. However, as the City of Paris had only communicated an extract (with passages blacked out) of a note drawn up by its departments on the economic robustness of Clear Channel‘s offer, the applicant was entitled to request other documents, without their nature being revealed either in the judgment, nor in the conclusions.

Secondly, the ruling closes the door on the communicability of exchanges that took place during the negotiation of the contract. The court had ruled that all the documents exchanged between the City of Paris and Clear Channel France during the negotiation were communicable, subject to compliance with business secrecy. As the public rapporteur stated, “disclosing the responses of the successful bidder during the negotiation phase, whether positive or negative, means disclosing part of the company’s business information, and this information is covered by secrecy. Under these conditions, they are not answers that can be disclosed subject to business secrecy; they are answers that cannot be disclosed because of business secrecy. It is only the final and global offer of the successful bidder that will be communicable”. Consequently, the Conseil d’Etat ruled that “when an appeal is lodged concerning the disclosure of such documents, it is up to the judges of the court of first instance to examine whether, by themselves, the information contained in the documents whose disclosure is requested may, by affecting competition between economic operators, infringe business secrecy and thus prevent disclosure pursuant to the provisions of Article L. 311-6 of the [CRPA]”, a formulation already adopted in three cases judged by the Conseil d’Etat in 2016. As a result, “the documents and information exchanged between the administration and a candidate during the negotiation phase of a public procurement contract, where they reveal the candidate’s commercial strategy by their very nature, fall within the scope of 1° of Article L. 311-6 and are therefore not communicable”. There is, therefore, no need to distinguish between what may and may not be disclosed in this context, including disclosure of what was produced by the granting authority alone in the context of the negotiation, since this could reveal the commercial strategy of the candidate.

Thirdly and lastly, the Conseil d’Etat is more liberal with regard to the concealment of information in the bid analysis report, since it considers, like the administrative court, that the elements of the bid analysis report relating to “the overall financial commitments” of the winning company and “the general nature of the services proposed” were communicable, as well as the elements relating to the commitments made by the winning company to the contracting authority in terms of quantity and quality of the services, since they do not mention either the unit prices or the precise characteristics of these services.

It should be noted that requests for communication of documents relating to the award of contracts seem to be made quite often by competitors. Their objective is not necessarily contentious, but may also be to better understand the decision in order to learn from its failures and to understand the price differences.