Offre anormalement basse : le pouvoir adjudicateur est tenu de motiver le rejet d'une offre anormalement basse

Abnormally low tender: the contracting authority must justify the rejection of an abnormally low tender

by gmorales on November 12, 2013 | Category: Public markets
Offre anormalement basse : le pouvoir adjudicateur est tenu de motiver le rejet d'une offre anormalement basse Offre anormalement basse : le pouvoir adjudicateur est tenu de motiver le rejet d'une offre anormalement basse

CE 29 October 2013, Department of the Gard, n ° 371233

Abnormally low tender: the contracting authority must justify the rejection of an abnormally low tender

Offre anormalement basse : le pouvoir adjudicateur est tenu de motiver le rejet d'une offre anormalement basse Rule No. 1: an obligation to seek explanations

Whether it is a formalized procedure or an adapted procedure, it is the responsibility of the contracting authority which finds that an offer seems abnormally low to request from its author all details and justifications of a nature to explain the price offered without to be required to ask him specific questions: it is now an obligation that is barely imperative procedural irregularity.

Rule 2: an obligation to state reasons for the rejection of an ATO

The decision rejecting an offer on the ground that it is abnormally low must be reasoned. Failure to state reasons for the rejection decision constitutes a breach of the transparency and competition requirements. The requirement to state the reasons for the decision rejecting an offer as abnormally low is intended, inter alia, to enable the author of this offer to usefully contest the rejection which was raised against him before the pre-contractual judge.

Rule n ° 3: the possibility to motivate the rejection during the proceedings

The failure to fulfill obligations shall cease if the reasons for that decision have been communicated to the unsuccessful candidate on the date on which the judge hearing the application for interim measures is taken and if the period which elapsed between that communication and the date on which the judge rules has been sufficient to allow this candidate to usefully contest his eviction. Tip for companies: if the reasons are communicated the day of the hearing, require a postponement of the hearing in application of the judgment of the Council of State of 19 April 2013, Commune of Mandelieu-la-Napoule, req.n ° 365617 to respect the contradictory and allow to usefully contest the grounds invoked. The Council of State requires that "the time elapsed between this communication and the date on which the judge rules [must be] sufficient to allow this candidate to usefully contest his eviction".

Rule 4: the verification of the supporting documents produced by the candidate

The candidate suspected of abnormally low offer can not justify "very low" prices on the grounds of his long experience and the difficult economic context. Such arguments do not constitute "justifications" within the meaning of Article 55 of the Code des Marches Publics.