MAPA: The publication on a website is considered insufficient!
The public agricultural school of Loir-et-Cher has launched a procedure adapted to award a service contract on the training to the practice of riding its students, under the option "Hippology The call for applications has been published on the public contracts module of the website of AJI-Gestion pour l'éducation association, a national professional association of public institution management staff. The Administrative Court considers that while this form of advertising may be regarded as suitable for contracts relating to the satisfaction of the usual needs of educational establishments, it is insufficient when, as in the present case, are of a specific nature, and can only be satisfied by specialized structures located in a small geographical area They are not the usual interlocutors of the institutions and therefore do not regularly consult the websites of these institutions.
Rule n ° 1:
This case first gives the opportunity to recall that publication on a website should not be used to try to limit the game of competition.
It also makes it possible to recall that the Internet can be used as a main publication medium subject to the double condition that the services which are the subject of the publication are not too specific and can only be executed by a small number of service providers; on the other hand, that the website chooses as a medium of publication a hearing adapted to the economic specialty targeted by the object of the contract, in other words, that it is regularly consulted by the potential candidates concerned.
Rule n ° 2:
Article 80 of the Code des Marches Publics, on the motivation of rejections to unsuccessful candidates, does not apply to contracts with an adapted procedure.
Rule n ° 3:
For contracts awarded under an adapted procedure, the consultation rules may be limited to the main features of the procedure and the choice of the tender (Article 42 of the Public Procurement Code). The consultation rules are not mandatory if the notice already contains the main features of the procedure and the choice of the offer.
It is very surprising that, based on the assumption that the website chosen as sole publication medium was insufficient to ensure advertising in accordance with the fundamental principles of public procurement, the administrative judge decided that it was sufficient to trigger the time limit for litigation two months: there is an inconsistency that does not guarantee the right to an effective judicial remedy.
Practical advice :
- If you are a contracting authority:Models of public tender notices drawn from the single point of view of the amount of the relevant contract are to be prohibited. You can have a starting frame, but it must be adapted, that is to say personalized for each consultation that you launch. You must always choose the advertising medium taking into account cumulatively the purpose of the contract, its amount and the degree of competition of the economic sector concerned. You need to find the right balance, the right mix between the content of the advertisement to be launched and the financial cost of publishing.
- If you are an unsuccessful candidate: You may lodge an appeal against the validity of the contract (known as the "TROPIC 2" or "Tarn-et-Garonne" appeal) before the contract judge, that is to say, an appeal of unlimited jurisdiction contesting the validity of the contract. this contract or some of its clauses which are divisible, accompanied, if necessary, by indemnity claims. This appeal may be lodged for failure to comply with the publicity and competitive bidding requirements, serious defects affecting the market or in the choice of the successful tenderer within two months from the publication of a notice of award. However, to obtain compensation, you must demonstrate, in sufficient detail and supporting evidence, that you had a serious chance of winning the contract, or at least that you were not deprived of any chance.
Administrative Court of Appeal of Nantes
N ° 12NT02188
Unpublished at Lebon collection
Mr. LAINE, President
Mr Bernard MADELAINE, rapporteur
Mr GAUTHIER, public rapporteur
TOUBALE, lawyer (s)
Reading of Tuesday, September 30, 2014
IN THE NAME OF THE FRENCH PEOPLE
Considering the request, registered on July 30, 2012, and the complementary brief registered on August 13, 2012, presented for the EARL Naveil Equitation, whose seat is located 27 rue Louis Lambert, locality "La Lézonnière" in Naveil (41100) , by Me Toubale, lawyer at the Bar of Blois; EARL Naveil Equitation asks the court:
1 °) to annul the judgment n ° 1104253 of May 24, 2012 by which the administrative court of Orleans rejected his request tending, on the one hand, to the cancellation of the contract concluded between the agricultural school public of Loir-et -Cher and Stables of Vendômois relating to training in the practice of riding, on the other hand, to the condemnation of the public agricultural college of Loir-et-Cher to pay him the sum of 108 980 euros in compensation for damages suffered because of its improper eviction from the market;
2 °) to annul the contract in question and to condemn the public agricultural college of Loir-et-Cher to pay him the sum of 73 152 euros in compensation for damages suffered;
3 °) to charge the public agricultural school of Loir-et-Cher the sum of 3 500 euros on the basis of the provisions of Article L. 761-1 code administrative justice;
the company argues that:
- the plea of existence of maneuvers has been distorted;
- the procedure was irregular: no consultation rules; lack of prior advertising; lack of knowledge of Article 80 of the Code des Marches Publics; no access to certain documents;
- in the examination of the tenders the contracting authority has shown bias, and the choice is wrong in the light of the criteria used;
Having regard to the judgment under appeal;
Considering the defense, registered on November 9, 2012, presented for the public agricultural school of Loir-et-Cher, whose head office is located in Areines in Vendôme (41106), by Me Boisseau, lawyer at the Bar of Blois, which concludes the dismissal of the petition and that EARL Naveil Equitation be charged the sum of 3 500 euros under Article L. 761-1 of the Code of Administrative Justice;
he argues that:
- it is a public contract and not a public service delegation;
- the court replied to the plea of existence of maneuvers and did not unduly burden the company to establish its accusations;
- the contract was launched in accordance with Article 28 of the Public Contracts Code on a regular basis;
- Article 80 of the Code des Marches Publics does not apply;
- the choice made is not wrong;
- the plea alleging breach of equality between the competitors is unfounded;
Considering the brief, recorded on January 17, 2013, presented for the EARL Naveil Equitation, which concludes for the same purposes as the request by the same means; it further argues that the advertising was inadequate;
Considering the mail dated January 21, 2014 sent to the parties pursuant to Article R. 611-11-1 code administrative justice;
Considering the order dated 24 February 2014 immediately closing the investigation pursuant to Article R. 613-1 code administrative justice;
Considering the other parts of the file;
Given the code of public contracts;
Considering the code of administrative justice;
Parties having been regularly informed of the day of the hearing;
After hearing during the public hearing on September 12, 2014:
- the report of Mr Madelaine, acting as first counselor,
- the conclusions of Mr Gauthier, public rapporteur,
- and the observations of Me Toubale, representing EARL Naveil Equitation;
1. Considering that the public agricultural school of Loir-et-Cher has, by notice of call for application published on June 22, 2011, engaged, according to the adapted procedure of the article 28 of the code of the public markets, a procedure of Awarding of a service contract for the training of pupils in the practice of horse riding, as part of the "horse-riding" option; that, on the two candidates who submitted an offer, the tender commission, met on August 29, 2011, retained that of the Ecuries du Vendômois and dismissed that of the EARL Naveil Equitation, which was informed of the rejection of his offer on August 30, 2011; the contract was concluded on August 31, 2011; that the EARL Naveil Equitation raises the appeal of the judgment of May 24, 2012 by which the administrative court of Orléans rejected his request tending, on the one hand, to the cancellation of the contract concluded between the public agricultural school of Loir-et- Cher and the Stables of Vendômois relating to training in the practice of riding, on the other hand, to the condemnation of the public agricultural school of Loir-et-Cher to repair the damages suffered as a result of its illegal eviction from the market;
On the regularity of the judgment:
2. Considering that by means of the applicant drawn from the existence of maneuvers whose object was to oppose the presentation of his candidacy, the first judges answered that it was constant that it could candidat the award of the contract and that none of the documents produced were such as to establish the existence of these maneuvers; In doing so, the court did not disregard the content or the scope of the plea, and did not improperly lay proof of the merits of its allegations concerning the maneuvering of which the proceedings would have been tainted.
On the conclusions for annulment:
3. Considering that, irrespective of the actions which the parties to the contract have before the court of the contract, any competitor evicted from the conclusion of an administrative contract is admissible to form before the same judge an appeal of unlimited jurisdiction contesting the validity of this contract or of some of its clauses, which are divisible, accompanied, if necessary, by indemnity claims; that this remedy must be exercised, including if the disputed contract relates to public works, within a period of two months from the completion of the appropriate publicity measures, in particular by means of a notice mentioning both the conclusion of the contract and the terms of its consultation in respect of the secrets protected by the law;
4. Considering that the company Naveil Equitation was notified as of August 30, 2011 by email that its offer had not been retained and that the contract was awarded to the company "Ecuries du Vendômois"; that this email specified that the original of the market could be consulted on the premises of the school and that a notice of attribution was published on the website "http://web.aji.france.com/"; that this notice recalled the procedure followed and the services subject to the contract, and specified the name of the successful tenderer; These advertising measures, adapted to the nature and size of the contract, were such as to trigger the two-month period during which the applicant company was entitled to ask for the cancellation or termination of the contract; that this period had thus expired on December 3, 2011, date of registration of the cancellation request at the registry of the Administrative Court of Orléans;
5. Considering that it follows from the foregoing that the EARL Naveil Equitation is unfounded to complain that the first judges rejected his conclusions for the cancellation of the contract concluded August 31, 2011 between the high school public farm of Loir-et-Cher and the company "Ecuries du Vendômois";
On the compensation claims:
6. Considering that the contracts awarded under the adapted procedure provided for in Article 28 of the Code des Marches Publics are subject, whatever their amount, to the fundamental principles referred to in the second paragraph of I of Article 1 of the same Code, according to which "public contracts respect the principles of freedom of access to public procurement, equal treatment of candidates and transparency of procedures"; whereas, therefore, if the public body is free, when it decides to use the procedure adapted for a contract whose estimated amount is lower than the thresholds defined by Article 26 of the Code des Marches Publics or which falls under the provisions of I of Article 30 of the Code, to determine the methods of publicity appropriate to the characteristics of this market, and in particular to its purpose, the amount thereof, the degree of competition between the undertakings concerned and the conditions under which it has been carried out, that choice must, however, subject to the exceptions expressly provided for in the same code, enable him to respect the fundamental principles of public order, which are binding on him;
7. Considering that the public agricultural school of Loir-et-Cher, which offers its students an option "horse-riding", has initiated a procedure to conclude a service contract for the purpose of: "the initiation and the teaching of riding gallop 1 to 7, the teaching of accompanying knowledge (theoretical riding and care), the personalized monitoring of students and the evaluation of students under the educational responsibility of teachers in physical education and sporting high school "; that the notice of call for candidatures was published on the module "public markets" of the website of the association "AJI-Management for education", national professional association of the personnel of stewardship of public educational institutions french; whereas, while this form of advertising may be regarded as suitable for contracts relating to the satisfaction of the usual needs of educational establishments, it is insufficient to meet the requirements resulting from the abovementioned principles of public order, where, as in the case of In this case, the services sought are of a specific nature and can only be fulfilled by specialized structures located in a small geographical area and which do not constitute usual interlocutors of the establishments; It follows that the EARL Naveil Equitation is justified in arguing that, for this reason, the contract at issue was concluded after an irregular procedure; that, on the other hand, Article 80 of the Code des Marches Publics can not usefully be invoked since it only applies to formalized procedures and Article 42 of that Code has not been infringed in the measure where the notice of invitation to tender of 22 June 2011 included the "main features of the procedure and the choice of the offer" within the meaning of the latter provision
8. Considering that when a candidate for the award of a public contract seeks compensation for the damage resulting from his unlawful removal from the contract, it is up to the judge to first check whether or not the candidate was deprived of any chance to win the contract; that, if so, he is not entitled to any compensation; that, in the negative, he is entitled in principle to reimbursement of the costs he has incurred to present his tender; whereas, on the other hand, it should be investigated whether the unlawfully ousted candidate had a good chance of winning the contract with another candidate; that in such a case, he is entitled to compensation for his loss of earnings, including necessarily, since they were included in his expenses, the costs of presentation of the offer, which therefore do not have to do subject, unless otherwise specified in the contract, of specific compensation;
9. Considering, on the one hand, that it follows from the investigation that in view of the content of its offer the EARL Naveil Equitation was not without any chance of winning the contract;
10. Considering, on the other hand, that the notice of invitation to tender specified that the tenders would be assessed on the basis of three criteria, in order of priority: equipment and supervision of the structure, services offered, price; that it appears from the opinion of the tender commission that the offer of the company "Ecuries du Vendômois" was judged superior on the first two criteria; that the equipment of the two structures could be regarded as satisfying the needs, even if those of the applicant would be newer and more important; On the contrary, the EARL Naveil Equitation had neither the number of horses required nor a sufficient staff of supervision and that the envisaged solutions, consisting in particular in a distribution of the groups of seventeen pupils between theoretical courses and practical courses did not match the teaching objectives of the teaching team; that finally the pedagogical project of the selected provider, which included the detailed description of the teaching program, the complete program of each gallop and the content of the assessments, which were accompanied by examples of student evaluation forms, was much more developed and precise as that of the applicant company; it follows that the EARL Naveil Equitation, which does not adduce its allegations that it was the victim of maneuvers or discriminatory practices of any element likely to support them, can not claim to have had a serious chance of winning the market;
11. Whereas, on the other hand, and insofar as it was not without any chance of obtaining this contract, it is entitled to the reimbursement of the costs it incurred to present its bid, which it amounts to the uncontested sum of 3,000 euros and that the public agricultural college must be ordered to pay him; that it is therefore justified to argue that it is wrong that, by the judgment attacked, the Administrative Court of Orléans rejected his claim for compensation;
The claims seeking the application of the provisions of Article L. 761-1 of the Code of Administrative Justice:
12. Considering that the provisions of Article L. 761-1 of the Code of Administrative Justice preclude the charging of the EARL Naveil Equitation, which is not, in the present case, the part loser, the payment of the amount demanded by the public agricultural college of Loir-et-Cher for costs incurred by him and not included in the costs; on the other hand, it is appropriate, in the circumstances of the case, to charge the public agricultural school of Loir-et-Cher the payment to the EARL Naveil Equitation of the sum of 1 500 euros under these same fees;
Article 1: The judgment of the administrative court of Orleans of May 24, 2012 is canceled in so far as it rejected the compensatory conclusions presented by the EARL Naveil Equitation.
Article 2: The public agricultural school of Loir-et-Cher is ordered to pay the EARL Naveil Equitation the sum of 3,000 (three thousand) euros.
Article 3: The surplus of the conclusions of the EARL Naveil Equitation is rejected.
Article 4: The public agricultural school of Loir-et-Cher will pay the EARL Naveil Equitation the sum of 1 500 euros (one thousand five hundred euros) under Article L. 761-1 code administrative justice.
Article 5: The conclusions of the public agricultural school of Loir-et-Cher under the provisions of Article L. 761-1 code administrative justice are rejected.
Article 6: The present judgment will be notified to EARL Naveil Equitation, the public agricultural school of Loir-et-Cher and Stables of Vendômois.