Vigilance vis-à-vis des méthode de notation des offres!

Vigilance vis-à-vis the method of scoring offers!

by gmorales on December 18, 2014 | Category: Pre-contractual & Contractual referral
Vigilance vis-à-vis des méthode de notation des offres! Vigilance vis-à-vis des méthode de notation des offres!

Vigilance vis-à-vis des méthode de notation des offres! Rule n ° 1:

The contracting authority freely defines the method of scoring offers which does not have to be brought to the attention of the candidates.

Rule n ° 2:

On the other hand, this method of rating offers should not be discriminatory. It must not lead to depriving the selection criteria of their scope or neutralizing their weighting, or not allowing the best score to be awarded to the best offer, or avoid, in view of all the criteria

Practical advice :

- If you are a contracting authority: there is no single method of rating the price criterion, as the price elements may vary from one public contract to another, depending on different parameters related to the price structure and contractual arrangement of the public contract. You should avoid as far as possible proposing "gas plant" pricing formulas that you may not be able to control. With a view to transparency and respect for the general principles of public procurement, it is advisable to indicate the rating method in the bid analysis report both in MAPA and in the formalized procedure. The best rating must be awarded to be awarded to the best offer. Avoid any breach of equal treatment of candidates. Test your scoring methods before starting the consultation. Check the absence of negative notes that taint the procedure.

- If you are a candidate : in case of eviction, systematically request the communication of the scoring method to check that the regularity of the scoring method used (CADA, n ° 20131592 reviews).

CE 3 November 2014, commune of Belleville-sur-Loire, req. n ° 373362

Board of state

N ° 373362
ECLI: FR: CESSR: 2014: 373362.20141103
Published in Lebon collection
7th and 2nd subsections combined
Mr Jean-Dominique Nuttens, rapporteur
Mr Gilles Pellissier, public rapporteur
SCP THOUIN-PALAT, BOUCARD, lawyer (s)

Reading of Monday, November 3rd, 2014
FRENCH REPUBLIC
IN THE NAME OF THE FRENCH PEOPLE

Considering the summary appeal and the complementary memorandum, registered on November 19, 2013 and February 19, 2014 to the litigation secretariat of the Council of State, presented for the commune of Belleville-sur-Loire, represented by its mayor; the municipality of Belleville-sur-Loire asks the Council of State:

1 °) to cancel the judgment n ° 12NT01553 of September 19th, 2013 by which the administrative court of appeal of Nantes rejected his request tending to the cancellation of the judgment n ° 1104148 of April 5th, 2012 by which the administrative court d Orléans, on the referral of the prefect of Cher, canceled the contracts it had concluded on May 31, 2011 with the company Milan Landscapes for the management and maintenance of communal green spaces;

2 °) to charge the State the payment of the sum of 5,000 euros under the provisions of Article L. 761-1 code administrative justice;

Considering the other parts of the file;
Given the code of public contracts;
Considering the code of administrative justice;

After hearing in open session:

- the report of Mr Jean-Dominique Nuttens, master of requests in extraordinary service,
- the conclusions of Mr Gilles Pellissier, public rapporteur;

The word having been given, before and after the conclusions, to the SCP Thouin-Palat, Boucard, lawyer of the municipality of Belleville-sur-Loire;

1. Considering that it appears from the documents in the file submitted to the judges of the fund that the municipality of Belleville-sur-Loire published in 2011 a notice of public call for competition for the purpose of awarding, according to the procedure of l open tender, from a contract to purchase orders divided into four lots for the maintenance of its green spaces; that the four lots were awarded to Milan Landscapes; that the municipality of Belleville-sur Loire appeals in cassation against the judgment by which the administrative court of appeal of Nantes rejected its request tending to the cancellation of the judgment by which the administrative court of Orléans canceled the four contracts concluded with the company Milan Landscapes;

2. Considering, firstly, that the contracting authority freely defines the rating method for the implementation of each of the selection criteria for the tenders which it has defined and made public; whereas, however, these methods of marking are tainted with irregularity if, in breach of the fundamental principles of equal treatment of candidates and transparency of procedures, they are in themselves such as to deprive the selection criteria of their scope or neutralize their weighting and are, therefore, likely to lead, for the implementation of each criterion, that the best score is not awarded to the best offer, or, in view of all criteria weighted, that the economically most advantageous offer is not chosen; This is the case even though the contracting authority, which is not obliged to do so, has made public such methods of notation in the notice of competition or in the consultation documents;

3. Considering that it appears from the documents in the file submitted to the judges of the merits that the award criteria for the four lots of the contested contract were, for two of them, the price and the technical value, and for the two others price, technical value and turnaround time; whereas the Rules of Procedure provided that, for the purpose of applying the price criterion, each offer would be rated on the basis of its price (P) and the lowest offer price (P0) according to the formula: 10 / 3 x (7 - P / P0); that by noting that such a rating method had the effect of neutralizing price differences so that the offers could be differentiated only in the light of the other selection criteria and could thus lead to that the most economically advantageous tender was not chosen and in deducing that this method was tainted with irregularity, the court did not commit any error of law;

4. Considering, secondly, that if the municipality of Belleville-sur-Loire claims that the court made an error of law by drawing consequences from the irregularity which it had noted for all the lots, a such a plea can not but be dismissed, since it appears from the documents in the file submitted to it that the municipality had adopted a weighted price criterion of 50 % for the four lots;

5. Considering that it follows from all the foregoing that the appeal of the municipality of Belleville-sur-Loire, including the conclusions it presents under Article L. 761-1 code administrative justice, must be rejected;

DECIDE:
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Article 1: The appeal of the municipality of Belleville-sur-Loire is rejected.
Article 2: This decision will be notified to the municipality of Belleville-sur-Loire.

Summary :

39-02-005 1) (a) The contracting authority shall freely define the rating method for the implementation of each of the bid selection criteria it has defined and made publicly available. methods of marking are flawed if, in breach of the fundamental principles of equal treatment of candidates and transparency of procedures, they are in themselves such as to deprive the selection criteria of their scope or to neutralize their weighting and are, therefore, likely to lead, for the implementation of each criterion, that the best score is not awarded to the best offer, or, in view of all the weighted criteria, that the economically most advantageous offer is not chosen. This is the case even though the contracting authority, which is not required to do so, has made public, in the notice of competition or the consultation documents, such scoring methods. ,,, 2) Contract comprising four lots, the award criteria of which are, for two of them, the price and the technical value, and for the other two, the price, the technical value and the deadlines for completion. The regulation of the consultation provides that, for the implementation of the price criterion, each offer would be rated according to its price (P) and the lowest offer price (P0) according to the formula: 10/3 x (7 - P / P0). ,, Such a rating method has the effect of neutralizing price differences so that offers can only be differentiated in relation to the other selection criteria. It is thus likely that the most economically advantageous tender may not be chosen and is therefore tainted with irregularity.