The pre-contractual judge can see the absence of a candidate's capacity!
The Saône-et-Loire Department awarded a consortium consisting of the companies Delta Process and Accéo a public contract for the establishment and management of a telephone accessibility device to the departmental services for the deaf and hard of hearing.
The Websourd company had challenged before the pre-contractual judge the award of this contract to the group, on the ground that, in its opinion, the awarded group did not have the professional and technical capacities necessary for the execution of the contract.
By an order dated 10 April 2014, the judge of the Administrative Tribunal of Dijon dismissed the contract award procedure on the grounds that the grouping did not justify having the professional and technical capacities required for the performance of the contract. .
The Council of State rejects the appeal against this order.
It recalls that the pre-contractual judge has limited control over the assessment made by the contracting authority on the capacities of candidates to perform the contract (in this sense, see in particular EC, 28 April 2006, Abraham Construction Public Works Company¸ 286443).
It remained to be known on which elements of fact the Administrative Court would operate this control, fault for the applicant to be able to bring irrefutably the proof that the grouping had not, in his justified application file of his professional and technical capacities to execute the market.
This is the main contribution of this judgment.
It considers that the Administrative Tribunal of Dijon has rightly annulled the award procedure, on the grounds that neither the contracting authority nor the successful tenderer had produced, as part of the investigation, elements enabling the pre-contractual judge to exercise his control over the professional and technical capacities of the group, by producing extracts from the application file of the group awarded.
In this respect, it should be recalled that in the dialectic of the evidence before the administrative court, it is not for the applicant to provide irrefutable proof of the merits of his allegations.
Failing that, the applicant would be systematically confronted with the requirement of proof that it would be impossible for him to provide, since only the contracting authority has elements relating to the award procedure (application file of the the successful bid analysis report demonstrating the existence of a sub-criterion weighting that has not been communicated to the candidates ...).
It is solely for him to provide the Tribunal with the first elements capable of supporting his argument and of raising a reasonable doubt (EC, Ass., 28 May 1954, Barel, ECR 308, in this sense, see, for example, in referred to pre-contractual, TA Paris, Ord 10 February 2014, STé PROACT Medical, n ° 1400905); once these first elements have been brought, it is up to the defending party to fight them, bringing in turn these appropriate means of proof.
On the basis of those principles, since in the present case the applicant had adduced evidence capable of giving rise to a reasonable doubt as to the technical and professional capacity of the group to perform the contract, it belonged to the contracting authority and to the awarding him to fight elements, demonstrating not only the evidence of the reality of these abilities, but also this evidence had been brought in his nomination file.
This is also the second contribution of this judgment. The Conseil d'Etat recalls that the mere communication of professional references in the course of the investigation was not sufficient to justify that the group had, in the context of the consultation launched by the Department, demonstrated to the contracting authority its professional and financial capacities.
In this respect, the Conseil d'Etat had already ruled that the production by a candidate during the pre-contractual summary proceedings of documents could not compensate for the absence of their production in the candidate's bid, since that it was his responsibility to transmit these elements before the expiry of the deadline for submission of applications and tenders (EC 27 February 2013, Commune of Nîmes, n ° 364172).
Such a solution is obviously a guarantee of the effectiveness of the pre-contractual referral for companies, which we should rejoice!
Extract of the judgment in connection with the commentary
" 4. Considering, secondly, that, in order to annul the procedure for awarding the contract, the judge hearing the application for interim measures relied on the plea that the successful group did not justify having the requisite professional and technical abilities and did not thus need to use external means for the performance of the contract and that, consequently, his application should have been rejected by the contracting authority; It appears from the documents in the file submitted to the judge that this plea had been raised by the company Websourd as soon as his motion to institute proceedings; that, as a result and in any event, the company Delta Process is unfounded to maintain that the judge of interim relief would have disregarded the principle of the contradictory nature of the procedure and rendered his order at the end of an irregular procedure in based on a plea raised for the first time by the company Websourd in a statement communicated the day of the hearing and to which it could not answer, failing any postponement of the closing of the investigation;
5. Thirdly, under Article 52 (I) of the Code des Marches Publics: "Before examining the applications, the contracting authority that finds that the documents for which production was requested are absent or incomplete can ask all the candidates concerned to complete their application file within the same deadline for all and which can not be more than ten days.It can ask the candidates who have not justified the legal capacity allowing them to deposit their application to regularize their application under the same conditions and inform other candidates who have the opportunity to complete their application within the same deadline / Applicants who can not bid on a contract pursuant to the provisions of Article 43 or which, where appropriate after the implementation of the provisions of the first subparagraph, produce application files that do not contain the referred to in Articles 44 and 45 shall not be eligible to participate following the award procedure. Nominations which have not been rejected pursuant to the provisions of the preceding paragraph shall be examined in the light of the levels of professional, technical and financial capacities mentioned in the notice of public tender, or, if This is a procedure exempted from the sending of such a notice, in the regulation of the consultation. Applications that do not meet these capacity levels are eliminated ";
6. Considering that the pre-contractual judge can not censure the assessment made by the contracting authority, in application of this article, on the guarantees and technical capacities of candidates for a public contract, as well as on their professional references, that where that assessment is vitiated by a manifest error; It appears from the order under appeal that, in order to allow the plea that the successful group did not justify the requisite professional and technical skills and not have to resort to external means, the pre-contractual judge of the administrative court of Dijon was based on the absence of sufficient elements, in particular in the absence of the production by the department or grouping attribute, during the investigation, the application file of the grouping, so that it is checked the department's assessment of the group's application; The applicant company can not usefully argue that the judge hearing the application for interim measures made an error of law by not merely checking whether the assessment made by the contracting authority of the group's capacity was vitiated by a manifest error. that it is by a sovereign appreciation devoid of denaturation that the judge of the interim relief, which sufficiently motivated its order on this point, considered insufficient the only production, during the instruction, of professional references for the justification of the technical capacities and professional grouping; that the judge of interim relief could, therefore, without mistake of law, look at the means raised by society Websourd as founded; "