The pitfalls of the DC 2 form: the judge settles the debate launched a year ago!
The pitfalls of the DC 2 form: the judge settles the debate launched a year ago!
Me Sébastien PALMIER, a public procurement lawyer, had already alerted the government about the shortcomings of the DC 2 form in an article published on February 16, 2012 on Achatpublic.com. The Directorate of Legal Affairs then used its right of reply in considering that this form does not weaken the procedure, the proof being that no procedure was canceled for this reason. The judge of pre-contractual summary of the Administrative Tribunal of Bordeaux finally comes to settle the doctrinal debate by giving reason for the warnings of Me PALMIER.
The public purchaser must control the professional, technical and financial capacities of the candidates.
In order to be able to participate in an advertising and tendering procedure, each candidate must fulfill the participation conditions set by the public purchaser. Article 45 of the Code des Marches Publics provides in this respect that candidates may only be required to provide information and documents enabling them to assess their professional, technical and financial capacities. The list of this information and of these documents is fixed by the decree of August 28th, 2006 and is the subject of a very strict interpretation of the administrative judge since it participates in the freedom of access to the public order ( EC 13 November 2002, OPHLM of the Urban Community of Le Mans, application n ° 245303). It is therefore the different documents and information on this list that the public purchaser can use to check the professional, technical and financial guarantees of the candidates. This control is obligatory and is imperative of irregularity of the procedure (CE 29 April 2011, Minister of Justice, Minister of Justice and Freedoms, n ° 344617- CE 26 March 2008, Communauté urbaine de Lyon, req.n ° 303779). In other words, the public body can not limit its control to the mere material production of the documents claimed, but must also verify their content.
The public purchaser must announce the conditions of participation of the candidates and their methods of implementation.
Since the contracting authority is required to check the candidates' financial, technical and professional capacities, it is up to the contracting authority to specify in the specifications the documents and information that must be produced by the candidates to demonstrate the said capacities. For this reason, the public purchaser must indicate as soon as proceedings are initiated the various documents and information that enable the competitors' financial, technical and professional capacities to be checked in order to avoid any discretionary choice in the choice of candidates eligible to participate in the procedure (EC 24 February 2010, Community of Communes of the Enclave of the Popes, Req.no. 333569). In other words, to be able to participate in the procedure, each candidate must therefore know very precisely the information and documents to be provided. Article 52 of the Code des Marches Publics furthermore states that candidatures are examined in the light of the professional, technical and financial capacities conditions mentioned in the public invitation to tender or in the rules of the consultation, specifying those that do not meet these requirements must be eliminated. The result is therefore an obligation for the public purchaser to announce to the candidates the various documents and information which will enable him to check their professional, technical and financial guarantees. In case of litigation, the judge's control will be twofold: he must first make sure that the contracting authority has clearly indicated in the consultation documents the conditions of participation of candidates. It will then have to check whether the contracting authority has also informed candidates about the documents and information to be provided in order to assess their professional, technical and financial capacities.
This raises the question of knowing concretely whether the use of the DC 2 form makes it possible to respect these various obligations in the framework of the formalized procedures or not. The answer is affirmative provided that certain conditions are respected, otherwise the procedure may be annulled by any applicant.
The pitfalls of the new DC 2 form (former DC 5 form)
In a judgment dated 21 November 2007, the Conseil d'Etat has already had the opportunity to recall that the contracting authority may require candidates to use the DC 5 form to submit their application, on pain of inadmissibility. but also refer to this form in the notice of public competition to inform the companies the documents required information (EC 21 November 2007, Department of Var, n ° 300992-Also- EC May 10, 2006, Syndicat services of the Valence conurbation, n ° 286644).
However, this case-law, which was rendered under former DC 5, no longer applies to the new DC 2 form. Indeed, the former DC 5 form merely reproduced the list of documents and information contained in the decree of August 28, 2006: it constituted a simple standard support intended to facilitate the presentation of the documents and information required. Unlike the DC 5 form, the DC 2 form no longer allows the public purchaser to verify the candidates' professional, technical and financial capacities since it does not include the list of the order of 28 August 2006. Indeed, the Box G of the new form now indicates that the applicant must produce the list of documents and information that appear in the advertisement notice or the consultation rules. However, if in the notice or the regulation of the consultation, the buyer does not list these various elements but merely refers to the DC 2 form, as he had been accustomed to do under the authority of the former form DC 5, the candidate will remain unaware of the conditions of participation in the procedure and the procedure will be irregular. It's the snake biting its tail! The old DC 5 form has been adapted, its content modified and its codification to become the DC2 form from 6 to 3 pages. However, this simplification is likely to weaken the procedures if the contracting authority is not careful. The new standard form does not contain all the information and documents provided for by the decree of August 28, 2006 for the application of article 45 of the Code des Marches Publics. The contracting authority can therefore no longer be content to refer candidates to form DC 2 for the conditions of participation in the procedure. It must absolutely list the conditions of participation of the candidates either in the notice of advertisement, or in the regulation of the consultation.
The judge of the pre-contractual interim measures sanctions the compulsory use of the DC 2 form without specifying to the candidates the conditions of participation in the procedure
In an order dated October 16, 2013, Sté HEBRAS GARCIA, the Pre-contractual Pre-Trial Judge of the Administrative Tribunal of Bordeaux, has indeed canceled a publicity and tendering procedure on the ground that the contracting authority was satisfied refer candidates to form DC 2 to inform them of the conditions of participation in the procedure without the documents of the consultation specifying the list of documents and information used to check their financial, technical and professional capacities.
In that case, the specifications did not indicate the list of documents and information that were required of candidates to participate in the procedure in accordance with the order of 28 August 2006 issued for the application of Article 45 of the Code of public markets. It was simply stated that the assessment of the applicants' financial, technical and professional capacities would be assessed on the basis of the information provided in the DC 2 form. However, unlike the former DC 5 form, the DC 2 form does not specify the documents. and information to assess the financial, technical and professional abilities of candidates. By merely referring to the DC 2 form to inform the candidates of the conditions for participation in the procedure without further specification of the documents and information that would be used to check the financial, technical and professional capacities, the judge of the pre-contractual the contracting authority has failed to fulfill its publicity and competition requirements and has canceled the procedure. For the judge, the injury results from the lack of indication of the documents and information to verify the capabilities of the various candidates' candidates. For the judge, the fact of noting an offer that should never have been examined since the application could have been previously rejected is likely to distort the competition and the equality of treatment between the candidates whatever the stage of the procedure.
What you must remember :
- The public purchaser must announce the conditions of participation of the candidates and their methods of implementation in the advertisement notice or in the consultation rules.
- The simple reference to Form DC 2 to inform candidates of the conditions for participation in the procedure is insufficient.
- The public purchaser may require the use of the DC 2 form in support of the application but must absolutely list the conditions of participation of the candidates either in the notice of advertisement or in the regulation of the consultation.
this article was published on the website ACHATPUBLIC.COM on November 14, 2013