Is the contracting authority obliged to weight the sub-criteria for judging the tenders?
Is it necessary to publish the weighting of sub-criteria for judging offers?
Order No. 2005-649 of 6 June 2005 does not provide for any particular rule concerning the weighting of sub-criteria for judging offers. Under Article 24 of Decree No 2005-1742 of 30 December 2005, it is provided that the contracting authority is merely required to inform candidates of the criteria for judging tenders and their weighting. criteria are therefore not mentioned by the regulation: there is therefore no regulatory constraint in the current state of regulation.
For its part, with regard to contracts governed by the order of 6 June 2005, the case-law has transposed the solutions identified in the area of public procurement by considering that the contracting authority is required to indicate the weighting or hierarchy of sub-contracts. criteria if it is likely to have an influence on the submission of tenders by candidates (CE 25 March 2013, Sté Cophignon¸ req.n ° 364951). In short, a contracting authority is under no obligation to indicate the weighting of the sub-criteria for the rating of tenders unless this weighting (i) modifies the criteria for judging the tenders defined in the tender specifications (ii) contains elements which, had they been known during the preparation of tenders, could have influenced that preparation or (iii) were adopted taking into account elements likely to have a discriminatory effect towards one of the tenderers. Subject to these reservations, the result is a lack of obligation to weight the sub-criteria for judging offers.
In its pre-contractual injunction order, the Paris Administrative Court strictly enforced the Conseil d'Etat's reading chart by considering that, in this case, the publication of the weighting of the sub-criteria of the the technical value of judging offers is not likely to have harmed the ORANGE company since (i) on the one hand, the different sub-criteria are all related to the criterion of technical merit so that the the absence of an indication of the weighting did not have the effect in this case of modifying it; (ii) on the other hand, a specific chapter was devoted to each sub-criterion in the CCTP of the market so that they did not contain any element likely to have been able to influence the drawing-up of tenders and the absence of publication of their weighting did not prevent the company from correctly meeting the expectations of the contracting authority; (iii) finally, that this lack of weighting did not have the effect of disrupting the equality of the candidates, in other words a discriminatory effect, particularly with regard to the applicant who was outgoing candidate.
Nevertheless, to avoid any risk of litigation, it is recommended that the contracting authorities
to systematically publish the weighting of the sub-criteria, including when this is not likely to have an impact on the elaboration of the offers and the process of scoring the selection criteria.